Crimlawrev001.pdf

G.R. No. L-2068

October 20, 1948

DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga, Respondent. E. M. Banzali for petitioner. Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari for respondent TUASON, J.: chanrobles virtual law library The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion was denied and that denial is the subject matter of this proceeding.chanroblesvirtualawlibrary chanrobles virtual law library According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first instance.chanroblesvirtualawlibrary chanrobles virtual law library Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent justice of the peace had allowed the accused, over the complaint's objection, to recall the complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the preliminary investigation, there is nothing in it or any other law restricting the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring out the truth."chanrobles virtual law library But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses to repeat in his presence what they had said at the preliminary examination before the issuance of the order of arrest." We called attention to the fact that "the constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examination be an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be done away with

entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.chanroblesvirtualawlibrary chanrobles virtual law library The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew.chanroblesvirtualawlibrary chanrobles virtual law library Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner. Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur. Separate Opinions FERIA, J., dissenting:chanrobles virtual law library I am sorry to dissent from the decision.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner in the present case appeared at the preliminary investigation before the Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present her evidence so that her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected to petitioner's motion invoking section 11, Rule 108, and the objection was sustained. In view thereof, the accused refused to present his evidence, and the case was forwarded to the Court of First Instance of Pampanga.chanroblesvirtualawlibrarychanrobles virtual law library The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony. The motion was denied, and for that reason the present special civil action of mandamus was instituted.chanroblesvirtualawlibrary chanrobles virtual law library It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in the justice of the peace, was not a waiver of his alleged right to be confronted with and cross-examine the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary investigation. His motion having been denied, the petitioner has filed the present action in which he squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the provision of section 13, Article VIII, of the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the question of validity or constitutionality of said section 11 in connection with section 1

of Rule 108, because that question was not raised therein, and we merely construed the provisions on preliminary investigation or Rule 108. In said case the writer of this dissenting opinion said: It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising attorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and the provisions on preliminary investigation in the draft were the same as those of the old law, which gave the defendant the right to be confronted with and to cross-examine the witnesses for the prosecution. But the Supreme Court approved and adopted in toto the draft, except the part referring to preliminary investigation which it modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant to be confronted, with and cross-examine the witnesses against him, to depend entirely upon the whim or caprice of a judge or officer conducting the preliminary investigation. But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for decision, we have perforce to pass upon it.chanroblesvirtualawlibrary chanrobles virtual law library Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase or modify substantive rights." The constitution added the last part of the above-quoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which diminish, increase or modify substantive rights, are substantive and not adjective laws or rules concerning pleading, practice and procedure.chanroblesvirtualawlibrary chanrobles virtual law library It does not require an elaborate arguments to show that the right granted by law upon a defendant to be confronted with and cross-examine the witnesses for the prosecuted in preliminary investigation as well as in the trial of the case is a substantive right. It is based on human experience, according to which a person is not prone to tell a lie against another in his presence, knowing fully well that the latter may easily contradict him, and that the credibility of a person or veracity of his testimony may be efficaciously tested by a cross-examination. It is substantive right because by exercising it, an accused person may show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty thereof, and therefore the accused is entitled to be released and not committed to prison, and thus avoid an open and public accusation of crime, the trouble, expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering which a criminal prosecution always entails.chanroblesvirtualawlibrary chanrobles virtual law library This right is not a constitutional but a statutory right granted by law to an accused outside of the City of Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such right to a person charged with offenses triable by the Court of First Instance in the City of Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can not be modified, abridged, or diminished by the Supreme

Court, by virtue of the rule making power conferred upon this Court by the Constitution.chanroblesvirtualawlibrary chanrobles virtual law library Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the question of constitutionality or validity of said section had not been squarely raised) do away with the defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is null and void.chanroblesvirtualawlibrary chanrobles virtual law library The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to grant a defendant's request to have the witnesses for the prosecution recalled to testify again in the presence of the defendant and be cross-examined by the latter, does not validate said provision; because to make the exercise of an absolute right discretionary or dependent upon the will or discretion of the court or officer making the preliminary investigation, is evidently to diminish or modify it.chanroblesvirtualawlibrary chanrobles virtual law library Petition is therefore granted. PERFECTO, J., dissenting:chanrobles virtual law library In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we said: In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face to face." (Section 1 [17], Article III.)chanrobles virtual law library Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and to cross-examine them.chanroblesvirtualawlibrary chanrobles virtual law library Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the ordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not only from the jeopardy of being finally convicted and punished, but also from the physical, mental and moral sufferings that may unjustly be visited upon him in any one of the stages of the criminal process instituted against him. He must be afforded the opportunities to have the charges against him quashed, not only at the final hearing, but also at the preliminary investigation, if by confronting the witnesses for the prosecution he can convince the court that the charges are groundless. There is no justice in compelling him to undergo the troubles of a final hearing if at the preliminary hearing the case can be terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty gesture that should not have a place within the framework of dignified and solemn judicial proceedings. On the strength of the above quoted opinion the opinion should be granted and so we vote.chanroblesvirtualawlibrary chanrobles virtual law library Petition dismissed.

RESOLUTION March 8, 1949 TUASON, J.: chanrobles virtual law library This cause is now before us on a motion for reconsideration.chanroblesvirtualawlibrary chanrobles virtual law library In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336: "The constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to confront witness. As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.chanroblesvirtualawlibrarychanrobles virtual law library It is contended that section 11 of Rule 108 of the Rules of Court 1infringes section 13, Article VIII, of the Constitution. 2 It is said that the rule in question deals with substantive matters and impairs substantive rights.chanroblesvirtualawlibrary chanrobles virtual law library We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors, is an adjective law and not a substantive law or substantive right. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)chanrobles virtual law library As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution.chanroblesvirtualawlibrary chanrobles virtual law library As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the "the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" - is identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules.chanroblesvirtualawlibrary chanrobles virtual law library

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said: Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570. Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance as to offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition.chanroblesvirtualawlibrary chanrobles virtual law library While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional right to be informed of the charges against him both at such investigation and at the trial is unchanged. In the latter stage of the proceedings, the only stage where the guaranty of due process comes into play, he still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact that this formality is frequently waived.chanroblesvirtualawlibrary chanrobles virtual law library The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the

time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones.chanroblesvirtualawlibrary chanrobles virtual law library The motion is denied. Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur. FERIA, J., dissenting:chanrobles virtual law library I dissent.chanroblesvirtualawlibrary chanrobles virtual law library The motion for reconsideration must be granted.chanroblesvirtualawlibrary chanrobles virtual law library According to the resolution, the right of a defendant to be confronted with and cross-examine the witnesses for the prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, as amended, in force prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter of procedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following reasons:chanrobles virtual law library First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of evidence embodied in these rules."chanrobles virtual law library Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition."chanrobles virtual law library Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . . "This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage."chanrobles virtual law library Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not always well understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the mode or proceeding by which a legal right is enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in which

proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law Dictionary.chanroblesvirtualawlibrary chanrobles virtual law library Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil, criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended, there are provisions which create, define and regulate substantive rights, and many of those provisions such as those relating to guardianship, adoption, evidence and many others are incorporated in the Rules of Court for the sake of convenience and not because this Court is empowered to promulgate them as rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended party the right to commence a criminal action or file a complaint against the offender and to intervene in the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the City of Manila) the right to bail, and to a preliminary investigation including his rights during said investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not necessary for us to mention, are obviously substantive rights.chanroblesvirtualawlibrary chanrobles virtual law library (1) As to the first argument, the premise "the preliminary investigation is eminently and essentially remedial is not correct. Undoubtedly the majority means to say procedural, in line with the conclusion in the resolution, because remedial law is one thing, and procedural law is another. Obviously they are different branches of the law. "Remedial statute" is "a statute providing a remedy for an injury as distinguished from a penal statute. A statute giving a party a mode of remedy for a wrong where he had none or a different one before. . . . Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law, as arise either from the general imperfections of all human law, from change of time and circumstances, from the mistakes and unadvised determination of unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.)chanrobles virtual law library It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of the complaint or information filed against him, and also to be informed of the testimony and evidence presented against him, and may be allowed to testify and present witnesses or evidence for him if he so desires," are not rules of evidence; and in the second place, it is evident that most of the rules of evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules of evidence are substantive rights found in common law chiefly and growing out of reasoning, experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence and the rules of practice with respect thereto form part of the law of procedure, but the classification of proofs is sometime determined by the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris tantum presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a person to testify as a witness be considered procedural?chanrobles virtual law library

Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not only for the reason just stated, but because our contention that the defendant can not be deprived of his right to be confronted with and cross-examine the witness of the prosecution is a preliminary investigation under consideration would not, if upheld, necessarily tear down said section. Our theory, is that said section 11 should be so construed as to be valid and effective, that is, that if the defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his presence, and to allow the former to cross-examine the latter, the court or officer making the preliminary investigation is under obligation to grant the request. But if the defendant does not so ask the court, he should be considered as waiving his right to be confronted with and cross-examine the witness against him.chanroblesvirtualawlibrary chanrobles virtual law library (2) With respect to the second argument or reason, it is true that the preliminary investigation as provided for in the General Orders, No. 58, as amended, is not an essential part of due process of law, because "due process of law" is not iron clad in its meaning; its does not necessarily mean a particular procedure. Due process of law simply requires a procedure that fully protects the life, liberty and property. For that reason the investigation to be made by the City Fiscal of the City of Manila under Act No. 612, now section 2465 of the Administrative Code, before filing an information, was considered by this Court as sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already and correctly held that: "The law having explicitly recognized and established that no person charged with the commission of a crime shall be deprived of his liberty or subjected to trial without prior preliminary investigation (provided for in General orders, No. 58, as amended) that shall show that there are reasonable grounds to believe him guilty, there can be no doubt that the accused who is deprived of his liberty, tried and sentenced without the proper preliminary investigation having been made in his regard, is convicted without the process of law," (United States vs. Banzuela, 31 Phil., 564).chanroblesvirtualawlibrary chanrobles virtual law library The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application to the present case, for the question involved therein was the power of Congress to alter the rules of evidence and procedure without violating the constitutional precept that prohibits the passing of ex post facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of pleading, practice and procedure, which diminish the substantive right of a defendant, expressly prohibited by the same provision of the Constitution that confers upon this Court the power to promulgate said rules.chanroblesvirtualawlibrary chanrobles virtual law library (3) The last reason or argument premised on the conclusion that "the distinction between remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the majority's first reason, remedy and procedure are two completely different things.chanroblesvirtualawlibrary chanrobles virtual law library As above defined, substantive law is clearly differentiated from procedural law and practice. But even assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of the court over procedure can not pass without touching upon the substantial right of the parties, what this Court should do in that case would be to abstain from promulgating such rule of procedure which many increase, diminish or modify substantive right in order to

avoid violating the constitutional prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on them in making the rules, and the Constitution must be presumed not to tolerate nor expect such incursion as would affect the substantive rights of the accused in any manner.chanroblesvirtualawlibrary chanrobles virtual law library Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the absence of the defendant and without an opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be admitted against the defendant in a preliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or if arrested should be released immediately a short time after his arrest after the preliminary investigation, would have to be held for trial and wait for a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence in the preliminary investigation, evidence not admissible at the trial.chanroblesvirtualawlibrary chanrobles virtual law library Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of the majority reversed or modified in accordance with my dissenting opinion. PERFECTO, J.: chanrobles virtual law library We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be granted. Endnotes: TUASON, J.: 1

Rights of defendant after arrest. - After the arrest of the defendant and his delivery to the court, he shall be informed of the complaint or information filed against him. He shall also be informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him.chanroblesvirtualawlibrary chanrobles virtual law library 2

The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines.

POTENCIANA M. EVANGELISTA, petitioner, vs. THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN, (FIRST DIVISION), respondents. RESOLUTION YNARES-SANTIAGO, J.: On September 30, 1999, we rendered a Decision in this case acquitting petitioner of the charge of violation of then Section 268 (4) of the National Internal Revenue Code[1] but affirming her conviction for violation of Republic Act No. 3019, Section 3 (e), [2] thus imposing on her an indeterminate sentence of imprisonment for six (6) years and one month as minimum to twelve (12) years as maximum, and the penalty of perpetual disqualification from public office. The basic facts are briefly restated as follows: On September 17, 1987, Tanduay Distillery, Inc. filed with the Bureau of Internal Revenue an application for tax credit in the amount of P180,701,682.00, for allegedly erroneous payments of ad valorem taxes from January 1, 1986 to August 31, 1987. Tanduay claimed that it is a rectifier of alcohol and other spirits, which per previous ruling of the BIR is only liable to pay specific taxes and not ad valorem taxes. Upon receipt of the application, Aquilino Larin of the Specific Tax Office sent a memorandum to the Revenue Accounting Division (RAD), headed by petitioner, requesting the said office to check and verify whether the amounts claimed by Tanduay were actually paid to the BIR as ad valorem taxes. Larins memorandum was received by the Revenue Administrative Section (RAS), a subordinate office of the RAD. After making the necessary verification, the RAS prepared a certification in the form of a 1st Indorsement to the Specific Tax Office, dated September 25, 1987, which was signed by petitioner as RAD chief. The 1st Indorsement states that Tanduay made tax payments classified under Tax Numeric Code (TNC) 3011-0001 totalling P102,519,100.00 and payments classified under TNC 0000-0000 totalling P78,182,582.00. Meanwhile, Teodoro Pareo, head of the Tax and Alcohol Division, certified to Justino Galban, Jr., Head of the Compounders, Rectifiers and Repackers Section, that Tanduay was a rectifier not liable for ad valorem tax. Pareo recommended to Larin that the application for tax credit be given due course. Hence, Larin recommended that Tanduays claim be approved, on the basis of which Deputy Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00. Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR Commissioner Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 was irregular and anomalous. Based on this, Larin, Pareo, Galban and petitioner Evangelista were charged before the Sandiganbayan with violation of Section 268 (4) of the National Internal Revenue Code and of Section 3 (e) of R.A. 3019, the Anti-Graft and Corrupt Practices Act. Larin, Pareo and petitioner were later convicted of both crimes, while Galban was acquitted inasmuch as his only participation in the processing of Tanduays application was the preparation of the memorandum confirming that Tanduay was a rectifier.

The three accused filed separate petitions for review. Pareos and Larins petitions were consolidated and, in a decision dated April 17, 1996, both were acquitted by this Court in Criminal Cases Nos. 14208 and 14209.[3] In this petition, on the other hand, we acquitted petitioner in Criminal Case No. 14208, for violation of Section 268 (4) of the NIRC. However, we found petitioner guilty of gross negligence in issuing a certification containing TNCs which she did not know the meaning of and which, in turn, became the basis of the Bureaus grant of Tanduays application for tax credit. Thus, we affirmed petitioners conviction in Criminal Case No. 14209, i.e., for violation of Section 3 (e) of the Anti-Graft and Corrupt Practices Act. Petitioner seasonably filed a Motion for Reconsideration,[4] wherein she asserts that there was nothing false in her certification inasmuch as she did not endorse therein approval of the application for tax credit. Rather, her certification showed the contrary, namely, that Tanduay was not entitled to the tax credit since there was no proof that it paid ad valorem taxes. Petitioner also claims that she was neither afforded due process nor informed of the nature and cause of the accusation against her. She was found guilty of an offense different from that alleged in the information; consequently, she was unable to properly defend herself from the crime for which she was convicted. The Information against petitioner and her co-accused in Criminal Case No. 14209 alleges in fine that they caused undue injury to the Government and gave unwarranted benefits to Tanduay when they endorsed approval of the claim for tax credit by preparing, signing and submitting false memoranda, certification and/or official communications stating that Tanduay paid ad valorem taxes when it was not liable for such because its products are distilled spirits on which specific taxes are paid, by reason of which false memoranda, certification and/or official communications the BIR approved the application for tax credit, thus defrauding the Government of the sum of P107,087,394.80, representing the difference between the amount claimed as tax credit and the amount of ad valorem taxes paid by Tanduay to the BIR.[5] According to petitioner, instead of convicting her of the acts described in the Information, she was convicted of issuing the certification without identifying the kinds of tax for which the TNCs stand and without indicating whether Tanduay was really entitled to tax credit or not. The Solicitor General filed his Comment[6] wherein he joined petitioners cause and prayed that the motion for reconsideration be granted. In hindsight, even the Solicitor Generals comment on the petition consisted of a "Manifestation and Motion in lieu of Comment,"[7] where he recommended that petitioner be acquitted of the two charges against her. We find that the Motion for Reconsideration is well-taken. After a careful re-examination of the records of this case, it would appear that the certification made by petitioner in her 1st Indorsement was not favorable to Tanduays application for tax credit. Far from it, petitioners certification meant that there were no payments of ad valorem taxes by Tanduay in the records and hence, it was not entitled to tax credit. In other words, the certification was against the grant of Tanduays application for tax credit.

It has been established that the BIR adopted tax numeric codes (TNCs) to classify taxes according to their kinds and rates, in order to facilitate the preparation of statistical and other management reports, the improvement of revenue accounting and the production of tax data essential to management planning and decision-making. These codes include TNC No. 3011-0001 for specific tax on domestic distilled spirits, TNC No. 30232001 for ad valorem tax on compounded liquors, and TNC No. 0000-0000 for unclassified taxes. Petitioners 1st Indorsement dated September 25, 1987 lists down the confirmation receipts covering tax payments by Tanduay for the period January 1, 1986 to August 31, 1987, during which Tanduay alleges that it made erroneous ad valorem tax payments, classified according to TNC numbers. The tax payments therein are described only as falling under TNC No. 3011-0001, i.e., specific tax, and TNC No. 0000-0000, i.e., unclassified taxes. There are no tax payments classified as falling under TNC No. 30232001, the code for ad valorem taxes. The import of this, simply, is that Tanduay did not make any ad valorem tax payments during the said period and is, therefore, not entitled to any tax credit. Further, petitioner contends that she was convicted of a supposed crime not punishable by law.[8] She was charged with violation of Section 3 (e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, which states: SEC. 3. Corrupt practices of public officers. --- In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx..................................xxx..................................xxx. (e)....Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, judicial or administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. xxx..................................xxx..................................xxx. The elements of the offense are: (1) that the accused are public officers or private persons charged in conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of their official duties or in relation to their public positions; (3) that they cause undue injury to any party, whether the Government or a private party; (4) that such injury is caused by giving unwarranted benefits, advantage or preference to such parties; and (5) that the public officers have acted with manifest partiality, evident bad faith or gross inexcusable negligence.[9] R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer should have acted by causing any undue injury to any party, including the Government, or by giving any private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of Section 3, paragraph (e), or as aptly

held in Santiago,[10] as two (2) different modes of committing the offense. This does not however indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under either mode or under both.[11] In the instant case, we find that petitioner, in issuing the certification, did not cause any undue injury to the Government. She also did not give unwarranted benefits, advantage or preference to Tanduay. Neither did petitioner display manifest partiality to Tanduay nor act with evident bad faith or gross inexcusable negligence. Quite the contrary, petitioners certification was against the interest of Tanduay. It did not advocate the grant of its application for tax credit. The certification can even be read as a recommendation of denial of the application. Petitioner further argues that her conviction was merely based on her alleged failure to identify with certainty in her certification the kinds of taxes paid by Tanduay and to indicate what the TNCs stand for, which acts were different from those described in the Information under which she was charged. This, she claims, violated her constitutional right to due process and to be informed of the nature and cause of the accusation against her. It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right.[12]In the case at bar, we find merit in petitioners contention that the acts for which she was convicted are different from those alleged in the Information. More importantly, as we have discussed above, petitioners act of issuing the certification did not constitute corrupt practices as defined in Section 3 (e) of R.A. 3019. Employees of the BIR were expected to know what the TNCs stand for. If they do not, there is a "Handbook of Tax Numeric Code of Revenue Sources" which they can consult. With this, petitioner should not be required to describe in words the kinds of tax for which each TNC used stands for. Precisely, the purpose of introducing the use of tax numeric codes in the Bureau was to do away with these descriptive words, in order to expedite and facilitate communications among the different divisions therein. We find that petitioners omission to indicate what kind of taxes TNC Nos. 3011-0001 and 00000000 stand for was not a criminal act. Applicable here is the familiar maxim in criminal law: Nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it. On the whole, therefore, we find that petitioner was not guilty of any criminal offense. The prosecutions evidence failed to establish that petitioner committed the acts described in the Information which constitute corrupt practices. Her conviction must, therefore, be set aside. For conviction must rest no less than on hard evidence showing that the accused, with moral certainty, is guilty of the crime charged. Short of these constitutional mandate and statutory safeguard --- that a person is presumed innocent until the contrary is proved --- the Court is then left without discretion and is duty bound to render a judgment of acquittal.[13]

WHEREFORE, the Motion for Reconsideration is GRANTED. This Courts Decision dated September 30, 1999 is RECONSIDERED and SET ASIDE. Petitioner is ACQUITTED of the charge against her. SO ORDERED.

ARTEMIO VILLAREAL,

G.R. No. 151258 Petitioner,

- versus PEOPLE OF THE PHILIPPINES, Respondent. x-------------------------x PEOPLE OF THE PHILIPPINES, Petitioner,

G.R. No. 154954

- versus -

THE HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL, SANTIAGO RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, andRONAN DE GUZMAN, Respondents. x-------------------------x FIDELITO DIZON, Petitioner, G.R. No. 155101

- versus PEOPLE OF THE PHILIPPINES, Respondent. x-------------------------x GERARDA H. VILLA, Petitioner,

- versus -

G.R. Nos. 178057 & 178080 Present:

MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR., and ANSELMO ADRIANO, Respondents.

CARPIO, J., Chairperson, BRION, PEREZ, SERENO, and REYES, JJ. Promulgated: February 1, 2012

x--------------------------------------------------x DECISION SERENO, J.: The public outrage over the death of Leonardo Lenny Villa the victim in this case on 10 February 1991 led to a very strong clamor to put an end to hazing.[1] Due in large part to the brave efforts of his mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death. This widespread condemnation prompted Congress to enact a special law, which became effective in 1995, that would criminalize hazing.[2] The intent of the law was to discourage members from making hazing a requirement for joining their sorority, fraternity, organization, or association.[3] Moreover, the law was meant to counteract the exculpatory implications of consent and initial innocent act in the conduct of initiation rites by making the mere act of hazing punishable or mala prohibita.[4] Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country.[5] Within a year of his death, six more cases of hazing-related deaths emerged those of Frederick Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant Marine Institute; and Joselito Hernandez of the University of the Philippines in Baguio City.[6] Although courts must not remain indifferent to public sentiments, in this case the general condemnation of a hazing-related death, they are still bound to observe a fundamental principle in our criminal justice system [N]o act constitutes a crime unless it is made so by law.[7] Nullum crimen, nulla poena sine lege. Even if an act is viewed by a large section of the populace as immoral or injurious, it cannot be considered a crime, absent any law prohibiting its commission. As interpreters of the law, judges are called upon to set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly based on the elements of the offense and the facts allowed in evidence. Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R. No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and 178080 (Villa v. Escalona).

FACTS The pertinent facts, as determined by the Court of Appeals (CA)[8] and the trial court,[9] are as follows: In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar Bogs Asuncion, Samuel Sam Belleza, Bienvenido Bien Marquez III, Roberto Francis Bert Navera, Geronimo Randy Recinto, Felix Sy, Jr., and Leonardo Lenny Villa (neophytes). On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufos Restaurant to have dinner. Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the neophytes on what to expect during the initiation rites. The latter were informed that there would be physical beatings, and that they could quit at any time. Their initiation rites were scheduled to last for three days. After their briefing, they were brought to the Almeda Compound in Caloocan City for the commencement of their initiation. Even before the neophytes got off the van, they had already received threats and insults from the Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then subjected to traditional forms of Aquilan initiation rites. These rites included the Indian Run, which required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to the neophytes; the Bicol Express, which obliged the neophytes to sit on the floor with their backs against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs; the Rounds, in which the neophytes were held at the back of their pants by the auxiliaries (the Aquilans charged with the duty of lending assistance to neophytes during initiation rites), while the latter were being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans; and the Auxies Privilege Round, in which the auxiliaries were given the opportunity to inflict physical pain on the neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles. They survived their first day of initiation. On the morning of their second day 9 February 1991 the neophytes were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternitys principles. Whenever they would give a wrong answer, they would be hit on their arms or legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment them physically and psychologically. The neophytes were subjected to the same manner of hazing that they endured on the first day of initiation. After a few hours, the initiation for the day officially ended. After a while, accused non-resident or alumni fraternity members[10] Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The head of

initiation rites, Nelson Victorino (Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to paddling and to additional rounds of physical pain. Lenny received several paddle blows, one of which was so strong it sent him sprawling to the ground. The neophytes heard him complaining of intense pain and difficulty in breathing. After their last session of physical beatings, Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again, the initiation for the day was officially ended, and the neophytes started eating dinner. They then slept at the carport. After an hour of sleep, the neophytes were suddenly roused by Lennys shivering and incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans started helping him. They removed his clothes and helped him through a sleeping bag to keep him warm. When his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced dead on arrival. Consequently, a criminal case for homicide was filed against the following 35 Aquilans: In Criminal Case No. C-38340(91) 1. Fidelito Dizon (Dizon) 2. Artemio Villareal (Villareal) 3. Efren de Leon (De Leon) 4. Vincent Tecson (Tecson) 5. Junel Anthony Ama (Ama) 6. Antonio Mariano Almeda (Almeda) 7. Renato Bantug, Jr. (Bantug) 8. Nelson Victorino (Victorino) 9. Eulogio Sabban (Sabban) 10. Joseph Lledo (Lledo) 11. Etienne Guerrero (Guerrero) 12. Michael Musngi (Musngi) 13. Jonas Karl Perez (Perez) 14. Paul Angelo Santos (Santos) 15. Ronan de Guzman (De Guzman) 16. Antonio General (General) 17. Jaime Maria Flores II (Flores) 18. Dalmacio Lim, Jr. (Lim) 19. Ernesto Jose Montecillo (Montecillo) 20. Santiago Ranada III (Ranada) 21. Zosimo Mendoza (Mendoza) 22. Vicente Verdadero (Verdadero) 23. Amante Purisima II (Purisima) 24. Jude Fernandez (J. Fernandez) 25. Adel Abas (Abas)

26.

Percival Brigola (Brigola)

In Criminal Case No. C-38340 1. Manuel Escalona II (Escalona) 2. Crisanto Saruca, Jr. (Saruca) 3. Anselmo Adriano (Adriano) 4. Marcus Joel Ramos (Ramos) 5. Reynaldo Concepcion (Concepcion) 6. Florentino Ampil (Ampil) 7. Enrico de Vera III (De Vera) 8. Stanley Fernandez (S. Fernandez) 9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried. On the other hand, the trial against the remaining nine accused in Criminal Case No. C38340 was held in abeyance due to certain matters that had to be resolved first.[12] [11]

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal under Article 249 of the Revised Penal Code.[13] A few weeks after the trial court rendered its judgment, or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced anew.[14] On 10 January 2002, the CA in (CA-G.R. No. 15520)[15] set aside the finding of conspiracy by the trial court in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused according to individual participation. Accused De Leon had by then passed away, so the following Decision applied only to the remaining 25 accused, viz: 1.

Nineteen of the accused-appellants Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola (Victorino et al.) were acquitted, as their individual guilt was not established by proof beyond reasonable doubt.

2.

Four of the accused-appellants Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) were found guilty of the crime of slight physical injuries and sentenced to 20 days of arresto menor. They were also ordered to jointly pay the heirs of the victim the sum of ₱30,000 as indemnity.

3.

Two of the accused-appellants Fidelito Dizon and Artemio Villareal were found guilty beyond reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found no mitigating or aggravating circumstance, the CA sentenced them to an indeterminate sentence of 10 years of prision mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly and severally, the heirs of Lenny Villa in the sum of ₱50,000 and to pay the additional amount of ₱1,000,000 by way of moral damages.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused Concepcion on the ground of violation of his right to speedy trial. [16]Meanwhile, on different dates between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano.[17]On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153[18] reversed the trial courts Orders and dismissed the criminal case against Escalona, Ramos, Saruca, and Adriano on the basis of violation of their right to speedy trial.[19]

From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before this Court.

G.R. No. 151258 Villareal v. People The instant case refers to accused Villareals Petition for Review on Certiorari under Rule 45. The Petition raises two reversible errors allegedly committed by the CA in its Decision dated 10 January 2002 in CA-G.R. No. 15520 first, denial of due process; and, second, conviction absent proof beyond reasonable doubt.[20] While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of Death of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March 2011. Counsel thus asserts that the subject matter of the Petition previously filed by petitioner does not survive the death of the accused. G.R. No. 155101 Dizon v. People Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CAs Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520.[21] Petitioner sets forth two main issues first, that he was denied due process when the CA sustained the trial courts forfeiture of his right to present evidence; and, second, that he was deprived of due process when the CA did not apply to him the same ratio decidendi that served as basis of acquittal of the other accused.[22]

As regards the first issue, the trial court made a ruling, which forfeited Dizons right to present evidence during trial. The trial court expected Dizon to present evidence on an earlier date since a co-accused, Antonio General, no longer presented separate evidence during trial. According to Dizon, his right should not have been considered as waived because he was justified in asking for a postponement. He argues that he did not ask for a resetting of any of the hearing dates and in fact insisted that he was ready to present evidence on the original pre-assigned schedule, and not on an earlier hearing date. Regarding the second issue, petitioner contends that he should have likewise been acquitted, like the other accused, since his acts were also part of the traditional initiation rites and were not tainted by evil motives.[23] He claims that the additional paddling session was part of the official activity of the fraternity. He also points out that one of the neophytes admitted that the chairperson of the initiation rites decided that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do the paddling.[24]Further, petitioner echoes the argument of the Solicitor General that the individual blows inflicted by Dizon and Villareal could not have resulted in Lennys death.[25] The Solicitor General purportedly averred that, on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could not be considered fatal if taken individually, but if taken collectively, the result is the violent death of the victim.[26] Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lennys father could not have stolen the parking space of Dizons father, since the latter did not have a car, and their fathers did not work in the same place or office. Revenge for the loss of the parking space was the alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking space were only part of the psychological initiation. He then cites the testimony of Lennys co-neophyte witness Marquez who admitted knowing it was not true and that he was just making it up.[27] Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern for Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who mentioned that the former had kicked the leg of the neophyte and told him to switch places with Lenny to prevent the latters chills. When the chills did not stop, Dizon, together with Victorino, helped Lenny through a sleeping bag and made him sit on a chair. According to petitioner, his alleged ill motivation is contradicted by his manifestation of compassion and concern for the victims well-being. G.R. No. 154954 People v. Court of Appeals This Petition for Certiorari under Rule 65 seeks the reversal of the CAs Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight physical injuries.[28] According to the Solicitor General, the CA erred in holding that there could have been no conspiracy to commit hazing, as hazing or fraternity initiation had not yet been criminalized at the time Lenny died.

In the alternative, petitioner claims that the ruling of the trial court should have been upheld, inasmuch as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries led to the victims death, petitioner posits that the accused Aquilans are criminally liable for the resulting crime of homicide, pursuant to Article 4 of the Revised Penal Code.[29] The said article provides: Criminal liability shall be incurred [b]y any person committing a felony (delito) although the wrongful act done be different from that which he intended. Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor General, the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in setting aside the trial courts finding of conspiracy and in ruling that the criminal liability of all the accused must be based on their individual participation in the commission of the crime. G.R. Nos. 178057 and 178080 Villa v. Escalona Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CAs Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and 90153.[30] The Petition involves the dismissal of the criminal charge filed against Escalona, Ramos, Saruca, and Adriano. Due to several pending incidents, the trial court ordered a separate trial for accused Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to commence after proceedings against the 26 other accused in Criminal Case No. C-38340(91) shall have terminated. On 8 November 1993, the trial court found the 26 accused guilty beyond reasonable doubt. As a result, the proceedings in Criminal Case No. C-38340 involving the nine other co-accused recommenced on 29 November 1993. For various reasons, the initial trial of the case did not commence until 28 March 2005, or almost 12 years after the arraignment of the nine accused. Petitioner Villa assails the CAs dismissal of the criminal case involving 4 of the 9 accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to speedy trial within a reasonable period of time. She also points out that the prosecution cannot be faulted for the delay, as the original records and the required evidence were not at its disposal, but were still in the appellate court. We resolve herein the various issues that we group into five.

ISSUES 1.

Whether the forfeiture of petitioner Dizons right to present evidence constitutes denial of due process;

2.

Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of the right of the accused to speedy trial;

3.

Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when it set aside the finding of conspiracy by the trial court and adjudicated the liability of each accused according to individual participation;

4. 5.

Whether accused Dizon is guilty of homicide; and Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama, Almeda, and Bantug guilty only of slight physical injuries. DISCUSSION Resolution on Preliminary Matters

G.R. No. 151258 Villareal v. People In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took note of counsel for petitioners Notice of Death of Party. According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is extinguished if the offender dies prior to final judgment. The term personal penalties refers to the service of personal or imprisonment penalties,[31] while the term pecuniary penalties (las pecuniarias) refers to fines and costs,[32] including civil liability predicated on the criminal offense complained of (i.e., civil liability ex delicto).[33] However, civil liability based on a source of obligation other than the delict survives the death of the accused and is recoverable through a separate civil action.[34] Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal and pecuniary penalties, including his civil liability directly arising from the delict complained of. Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and terminated. G.R. No. 155101 (Dizon v. People) In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5thand 12 of October 1993.[35] The Order likewise stated that it will not entertain any postponement and that all the accused who have not yet presented their respective evidence should be ready at all times down the line, with their evidence on all said dates. Failure on their part to present evidence when required shall therefore be construed as waiver to present evidence.[36]

However, on 19 August 1993, counsel for another accused manifested in open court that his client Antonio General would no longer present separate evidence. Instead, the counsel would adopt the testimonial evidence of the other accused who had already testified.[37] Because of this development and pursuant to the trial courts Order that the parties should be ready at all times down the line, the trial court expected Dizon to present evidence on the next trial date 25 August 1993 instead of his originally assigned dates. The original dates were supposed to start two weeks later, or on 8 September 1993.[38] Counsel for accused Dizon was not able to present evidence on the accelerated date. To address the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a previously scheduled case, and that he would be ready to present evidence on the dates originally assigned to his clients.[39] The trial court denied the Manifestation on the same date and treated the Constancia as a motion for postponement, in violation of the three-day-notice rule under the Rules of Court.[40] Consequently, the trial court ruled that the failure of Dizon to present evidence amounted to a waiver of that right.[41] Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial court forfeited his right to present evidence. According to him, the postponement of the 25 August 1993 hearing should have been considered justified, since his original pre-assigned trial dates were not supposed to start until 8 September 1993, when he was scheduled to present evidence. He posits that he was ready to present evidence on the dates assigned to him. He also points out that he did not ask for a resetting of any of the said hearing dates; that he in fact insisted on being allowed to present evidence on the dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating the schedule of presentation of evidence, thereby invalidating the finding of his guilt. The right of the accused to present evidence is guaranteed by no less than the Constitution itself.[42] Article III, Section 14(2) thereof, provides that in all criminal prosecutions, the accused shall enjoy the right to be heard by himself and counsel This constitutional right includes the right to present evidence in ones defense,[43] as well as the right to be present and defend oneself in person at every stage of the proceedings.[44] In Crisostomo v. Sandiganbayan,[45] the Sandiganbayan set the hearing of the defenses presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to lack of quorum in the regular membership of the Sandiganbayans Second Division and upon the agreement of the parties. The hearing was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to attend. The Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant for the arrest of Crisostomo and the confiscation of his surety bond. The Order further declared that he had waived his right to present evidence because of his nonappearance at yesterdays and todays scheduled hearings. In ruling against the Order, we held thus: Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomos non-appearance during the 22 June 1995 trial was

merely a waiver of his right to be present for trial on such date only and not for the succeeding trial dates xxxxxxxxx Moreover, Crisostomos absence on the 22 June 1995 hearing should not have been deemed as a waiver of his right to present evidence. While constitutional rights may be waived, such waiver must be clear and must be coupled with an actual intention to relinquish the right. Crisostomo did not voluntarily waive in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel. In criminal cases where the imposable penalty may be death, as in the present case, the court is called upon to see to it that the accused is personally made aware of the consequences of a waiver of the right to present evidence. In fact, it is not enough that the accused is simply warned of the consequences of another failure to attend the succeeding hearings. The court must first explain to the accused personally in clear terms the exact nature and consequences of a waiver. Crisostomo was not even forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even allowing Crisostomo to explain his absence on the 22 June 1995 hearing. Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court could personally conduct a searching inquiry into the waiver x x x.[46] (Emphasis supplied) The trial court should not have deemed the failure of petitioner to present evidence on 25 August 1993 as a waiver of his right to present evidence. On the contrary, it should have considered the excuse of counsel justified, especially since counsel for another accused General had made a last-minute adoption of testimonial evidence that freed up the succeeding trial dates; and since Dizon was not scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five hearing dates for the reception of evidence. If it really wanted to impose its Order strictly, the most it could have done was to forfeit one out of the five days set for Dizons testimonial evidence. Stripping the accused of all his pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process. Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to enforce an automatic remand of the case to the trial court.[47] In People v. Bodoso, we ruled that where facts have adequately been represented in a criminal case, and no procedural unfairness or irregularity has prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that a guilty verdict may nevertheless be upheld if the judgment is supported beyond reasonable doubt by the evidence on record.[48]

We do not see any material inadequacy in the relevant facts on record to resolve the case at bar. Neither can we see any procedural unfairness or irregularity that would substantially prejudice either the prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth by accused Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead, what he is really contesting in his Petition is the application of the law to the facts by the trial court and the CA. Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition that all actions of the petitioner were part of the traditional rites, and that the alleged extension of the initiation rites was not outside the official activity of the fraternity.[49] He even argues that Dizon did not request for the extension and he participated only after the activity was sanctioned.[50] For one reason or another, the case has been passed or turned over from one judge or justice to another at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the reception of the evidence of petitioner Dizon would only inflict further injustice on the parties. This case has been going on for almost two decades. Its resolution is long overdue. Since the key facts necessary to decide the case have already been determined, we shall proceed to decide it. G.R. Nos. 178057 and 178080 (Villa v. Escalona) Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have been dismissed, since they failed to assert their right to speedy trial within a reasonable period of time. She points out that the accused failed to raise a protest during the dormancy of the criminal case against them, and that they asserted their right only after the trial court had dismissed the case against their co-accused Concepcion. Petitioner also emphasizes that the trial court denied the respective Motions to Dismiss filed by Saruca, Escalona, Ramos, and Adriano, because it found that the prosecution could not be faulted for the delay in the movement of this case when the original records and the evidence it may require were not at its disposal as these were in the Court of Appeals.[51] The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article III of the 1987 Constitution.[52] This right requires that there be a trial free from vexatious, capricious or oppressive delays.[53] The right is deemed violated when the proceeding is attended with unjustified postponements of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause or justifiable motive.[54] In determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case.[55] The conduct of both the prosecution and the defense must be weighed.[56] Also to be considered are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice wrought upon the defendant.[57]

We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of the accused to speedy trial is tantamount to acquittal. [58] As a consequence, an appeal or a reconsideration of the dismissal would amount to a violation of the principle of double jeopardy.[59] As we have previously discussed, however, where the dismissal of the case is capricious, certiorari lies.[60] The rule on double jeopardy is not triggered when a petition challenges the validity of the order of dismissal instead of the correctness thereof. [61] Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of jurisdiction prevents double jeopardy from attaching.[62] We do not see grave abuse of discretion in the CAs dismissal of the case against accused Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The court held thus: An examination of the procedural history of this case would reveal that the following factors contributed to the slow progress of the proceedings in the case below: xxxxxxxxx 5) The fact that the records of the case were elevated to the Court of Appeals and the prosecutions failure to comply with the order of the court a quo requiring them to secure certified true copies of the same. xxxxxxxxx While we are prepared to concede that some of the foregoing factors that contributed to the delay of the trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been utterly violated in this case x x x. xxxxxxxxx [T]he absence of the records in the trial court [was] due to the fact that the records of the case were elevated to the Court of Appeals, and the prosecutions failure to comply with the order of the court a quo requiring it to secure certified true copies of the same. What is glaring from the records is the fact that as early as September 21, 1995, the court a quo already issued an Order requiring the prosecution, through the Department of Justice, to secure the complete records of the case from the Court of Appeals. The prosecution did not comply with the said Order as in fact, the same directive was repeated by the court a quo in an Order dated December 27, 1995. Still, there was no compliance on the part of the prosecution. It is not stated when such order was complied with. It appears, however, that even until August 5, 2002, the said records were still not at the disposal of the trial court because the lack of it was made the basis of the said court in granting the motion to dismiss filed by co-accused Concepcion x x x.

xxxxxxxxx It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost seven years, there was no action at all on the part of the court a quo. Except for the pleadings filed by both the prosecution and the petitioners, the latest of which was on January 29, 1996, followed by petitioner Sarucas motion to set case for trial on August 17, 1998 which the court did not act upon, the case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is precisely the kind of delay that the constitution frowns upon x x x.[63] (Emphasis supplied)

This Court points out that on 10 January 1992, the final amended Information was filed against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera.[64] On 29 November 1993, they were all arraigned.[65] Unfortunately, the initial trial of the case did not commence until 28 March 2005 or almost 12 years after arraignment.[66] As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the Sandiganbayan for close to five years since the arraignment of the accused amounts to an unreasonable delay in the disposition of cases a clear violation of the right of the accused to a speedy disposition of cases.[67] Thus, we held: The delay in this case measures up to the unreasonableness of the delay in the disposition of cases in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the Ombudsman in resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the Court held that the delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him; and in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its discretion in not quashing the information which was filed six years after the initiatory complaint was filed and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be in the instant case, where the reinvestigation by the Ombudsman has dragged on for a decade already.[68] (Emphasis supplied) From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused Escalona et al.s right to speedy trial was violated. Since there is nothing in the records that would show that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De Vera, the effects of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano. G.R. No. 154954 (People v. Court of Appeals) The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a person is charged with an offense, and the case is terminated either by acquittal or

conviction or in any other manner without the consent of the accused the accused cannot again be charged with the same or an identical offense.[69] This principle is founded upon the law of reason, justice and conscience.[70] It is embodied in the civil law maxim non bis in idem found in the common law of England and undoubtedly in every system of jurisprudence.[71] It found expression in the Spanish Law, in the Constitution of the United States, and in our own Constitution as one of the fundamental rights of the citizen,[72] viz: Article III Bill of Rights Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right, provides as follows:[73] SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same Rules.[74] The requisites for invoking double jeopardy are the following: (a) there is a valid complaint or information; (b) it is filed before a competent court; (c) the defendant pleaded to the charge; and (d) the defendant was acquitted or convicted, or the case against him or her was dismissed or otherwise terminated without the defendants express consent.[75] As we have reiterated in People v. Court of Appeals and Galicia, [a] verdict of acquittal is immediately final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several avowed purposes. Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear out the accused by a multitude of cases with accumulated trials. It also serves the additional purpose of precluding the State, following an acquittal, from successively retrying the defendant in the hope of securing a conviction. And

finally, it prevents the State, following conviction, from retrying the defendant again in the hope of securing a greater penalty.[76] We further stressed that an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal.[77] This prohibition, however, is not absolute. The state may challenge the lower courts acquittal of the accused or the imposition of a lower penalty on the latter in the following recognized exceptions: (1) where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a deprivation of due process;[78] (2) where there is a finding of mistrial;[79] or (3) where there has been a grave abuse of discretion.[80] The third instance refers to this Courts judicial power under Rule 65 to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.[81] Here, the party asking for the review must show the presence of a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty imposed by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner by reason of passion and hostility;[82] or a blatant abuse of authority to a point so grave and so severe as to deprive the court of its very power to dispense justice.[83] In such an event, the accused cannot be considered to be at risk of double jeopardy.[84] The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the acquittal of Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight physical injuries, both on the basis of a misappreciation of facts and evidence. According to the Petition, the decision of the Court of Appeals is not in accordance with law because private complainant and petitioner were denied due process of law when the public respondent completely ignored the a) Position Paper x x x b) the Motion for Partial Reconsideration x x x and c) the petitioners Comment x x x.[85] Allegedly, the CA ignored evidence when it adopted the theory of individual responsibility; set aside the finding of conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code.[86] The Solicitor General also assails the finding that the physical blows were inflicted only by Dizon and Villareal, as well as the appreciation of Lenny Villas consent to hazing.[87] In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value of the evidence presented by the parties.[88] In People v. Maquiling, we held that grave abuse of discretion cannot be attributed to a court simply because it allegedly misappreciated the facts and the evidence.[89] Mere errors of judgment are correctible by an

appeal or a petition for review under Rule 45 of the Rules of Court, and not by an application for a writ of certiorari.[90] Therefore, pursuant to the rule on double jeopardy, we are constrained to deny the Petition contra Victorino et al. the 19 acquitted fraternity members. We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug the four fraternity members convicted of slight physical injuries. Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the state seeks the imposition of a higher penalty against the accused.[91]We have also recognized, however, that certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.[92] The present case is one of those instances of grave abuse of discretion. In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA reasoned thus: Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical punishment heaped on him were serious in nature. However, by reason of the death of the victim, there can be no precise means to determine the duration of the incapacity or the medical attendance required. To do so, at this stage would be merely speculative. In a prosecution for this crime where the category of the offense and the severity of the penalty depend on the period of illness or incapacity for labor, the length of this period must likewise be proved beyond reasonable doubt in much the same manner as the same act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof of the said period is absent, the crime committed should be deemed only as slight physical injuries [People v. De los Santos, CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is constrained to rule that the injuries inflicted by the appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight and not serious, in nature.[93] (Emphasis supplied and citations included) The appellate court relied on our ruling in People v. Penesa[94] in finding that the four accused should be held guilty only of slight physical injuries. According to the CA, because of the death of the victim, there can be no precise means to determine the duration of the incapacity or medical attendance required.[95] The reliance on Penesa was utterly misplaced. A review of that case would reveal that the accused therein was guilty merely of slight physical injuries, because the victims injuries neither caused incapacity for labor nor required medical attendance.[96] Furthermore,

he

did

not

die.[97] His

injuries

were

not

even

serious.[98] Since Penesa involved a case in which the victim allegedly suffered physical injuries and not death, the ruling cited by the CA was patently inapplicable. On the contrary, the CAs ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable merely for slight physical injuries grossly contradicts its own findings of fact. According to the court, the four accused were found to have inflicted more than the usual punishment undertaken during such initiation rites on the person of Villa.[99] It then adopted the NBI medico-legal officers findings that the antecedent cause of Lenny Villas death was the multiple traumatic injuries he suffered from the initiation rites. [100]Considering that the CA found that the physical punishment heaped on [Lenny Villa was] serious in nature,[101] it was patently erroneous for the court to limit the criminal liability to slight physical injuries, which is a light felony. Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences of an act, even if its result is different from that intended. Thus, once a person is found to have committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the death of the victim, courts are required to automatically apply the legal framework governing the destruction of life. This rule is mandatory, and not subject to discretion. The CAs application of the legal framework governing physical injuries punished under Articles 262 to 266 for intentional felonies and Article 365 for culpable felonies is therefore tantamount to a whimsical, capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According to the Revised Penal Code, the mandatory and legally imposable penalty in case the victim dies should be based on the framework governing the destruction of the life of a person, punished under Articles 246 to 261 for intentional felonies and Article 365 for culpable felonies, and not under the aforementioned provisions. We emphasize that these two types of felonies are distinct from and legally inconsistent with each other, in that the accused cannot be held criminally liable for physical injuries when actual death occurs.[102] Attributing criminal liability solely to Villareal and Dizon as if only their acts, in and of themselves, caused the death of Lenny Villa is contrary to the CAs own findings. From proof that the death of the victim was the cumulative effect of the multiple injuries he suffered, [103] the only logical conclusion is that criminal responsibility should redound to all those who have been proven to have directly participated in the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to suffer cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical injuries. As an

allowable exception to the rule on double jeopardy, we therefore give due course to the Petition in G.R. No. 154954. Resolution on Ultimate Findings According to the trial court, although hazing was not (at the time) punishable as a crime, the intentional infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the accused, the court a quo found that pursuant to Article 4(1) of the Revised Penal Code, the accused fraternity members were guilty of homicide, as it was the direct, natural and logical consequence of the physical injuries they had intentionally inflicted.[104] The CA modified the trial courts finding of criminal liability. It ruled that there could have been no conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of hazing during their initiation rites. The accused fraternity members, therefore, were liable only for the consequences of their individual acts. Accordingly, 19 of the accused Victorino et al. were acquitted; 4 of them Tecson et al. were found guilty of slight physical injuries; and the remaining 2 Dizon and Villareal were found guilty of homicide. The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits a felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even with, the victim. Rather, the case involves an ex ante situation in which a man driven by his own desire to join a society of men pledged to go through physically and psychologically strenuous admission rituals, just so he could enter the fraternity. Thus, in order to understand how our criminal laws apply to such situation absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the underlying concepts shaping intentional felonies, as well as on the nature of physical and psychological initiations widely known as hazing. Intentional Felony and Conspiracy Our Revised Penal Code belongs to the classical school of thought.[105] The classical theory posits that a human person is essentially a moral creature with an absolute free will to choose between good and evil.[106] It asserts that one should only be adjudged or held accountable for wrongful acts so long as free will appears unimpaired.[107]The basic postulate of the classical penal system is that humans are rational and calculating beings who guide their actions with reference to the principles of pleasure and pain.[108] They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible gain or advantage in committing the crime.[109] Here, criminal liability is thus based on the free will and moral blame of the actor.[110] The identity of mens rea defined as a guilty mind, a guilty or wrongful purpose or criminal intent is the predominant consideration.[111] Thus, it is not enough to do what the law prohibits.[112] In order for an intentional felony to exist, it is necessary that the act be committed by means of dolo or malice.[113]

The

term dolo or

malice

is

a

complex

idea

involving

the

elements

[114]

of freedom, intelligence, and intent. The first element, freedom, refers to an act done with deliberation and with power to choose between two things.[115] The second element, intelligence, concerns the ability to determine the morality of human acts, as well as the capacity to distinguish between a licit and an illicit act.[116] The last element, intent, involves an aim or a determination to do a certain act.[117] The element of intent on which this Court shall focus is described as the state of mind accompanying an act, especially a forbidden act.[118] It refers to the purpose of the mind and the resolve with which a person proceeds.[119] It does not refer to mere will, for the latter pertains to the act, while intent concerns the result of the act.[120] While motive is the moving power that impels one to action for a definite result, intent is the purpose of using a particular means to produce the result.[121] On the other hand, the term felonious means, inter alia, malicious, villainous, and/or proceeding from an evil heart or purpose. [122] With these elements taken together, the requirement of intent in intentional felony must refer to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act. Stated otherwise, intentional felony requires the existence of dolus malus that the act or omission be done willfully, maliciously, with deliberate evil intent, and with malice aforethought. [123] The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if the mind of the person performing the act complained of is innocent.[124] As is required of the other elements of a felony, the existence of malicious intent must be proven beyond reasonable doubt.[125] In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of the Revised Penal Code which provides that conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it is to be interpreted to refer only to felonies committed by means of doloor malice. The phrase coming to an agreement connotes the existence of a prefaced intent to cause injury to another, an element present only in intentional felonies. In culpable felonies or criminal negligence, the injury inflicted on another is unintentional, the wrong done being simply the result of an act performed without malice or criminal design.[126] Here, a person performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or lack of skill, the deed results in a wrongful act.[127] Verily, a deliberate intent to do an unlawful act, which is a requisite in conspiracy, is inconsistent with the idea of a felony committed by means of culpa.[128] The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the commission of the intentional felony of homicide.[129] Being mala in se, the felony of homicide requires the existence of malice or dolo[130] immediately before or simultaneously with the infliction of injuries.[131] Intent to kill or animus interficendi cannot and should not be inferred, unless there is proof beyond reasonable doubt of such intent.[132] Furthermore, the victims death must not have been the product of accident, natural

cause, or suicide.[133] If death resulted from an act executed without malice or criminal intent but with lack of foresight, carelessness, or negligence the act must be qualified as reckless or simple negligence or imprudence resulting in homicide.[134]

Hazing and other forms of initiation rites The notion of hazing is not a recent development in our society.[135] It is said that, throughout history, hazing in some form or another has been associated with organizations ranging from military groups to indigenous tribes.[136] Some say that elements of hazing can be traced back to the Middle Ages, during which new students who enrolled in European universities worked as servants for upperclassmen.[137] It is believed that the concept of hazing is rooted in ancient Greece,[138] where young men recruited into the military were tested with pain or challenged to demonstrate the limits of their loyalty and to prepare the recruits for battle.[139] Modern fraternities and sororities espouse some connection to these values of ancient Greek civilization.[140] According to a scholar, this concept lends historical legitimacy to a tradition or ritual whereby prospective members are asked to prove their worthiness and loyalty to the organization in which they seek to attain membership through hazing.[141] Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an organization to receive an invitation in order to be a neophyte for a particular chapter.[142] The neophyte period is usually one to two semesters long.[143] During the program, neophytes are required to interview and to get to know the active members of the chapter; to learn chapter history; to understand the principles of the organization; to maintain a specified grade point average; to participate in the organizations activities; and to show dignity and respect

for

members.

[144]

their

fellow

neophytes,

the

organization,

and

its

active

and

alumni

Some chapters require the initiation activities for a recruit to involve hazing acts

during the entire neophyte stage.[145] Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for admission to an organization.[146] In hazing, the recruit, pledge, neophyte, initiate, applicant or any other term by which the organization may refer to such a person is generally placed in embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar tasks or activities.[147] It encompasses different forms of conduct that humiliate, degrade, abuse, or physically endanger those who desire membership in the organization.[148] These acts usually involve physical or psychological suffering or injury.[149]

The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our national hero Andres Bonifacio organized a secret society named Kataastaasan Kagalanggalangang Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable Association of the Sons and Daughters of the Nation).[150] The Katipunan, or KKK, started as a small confraternity believed to be inspired by European Freemasonry, as well as by confraternities or sodalities approved by the Catholic Church.[151] The Katipunans ideology was brought home to each member through the societys initiation ritual.[152] It is said that initiates were brought to a dark room, lit by a single point of illumination, and were asked a series of questions to determine their fitness, loyalty, courage, and resolve.[153] They were made to go through vigorous trials such as pagsuot sa isang lungga or [pagtalon] sa balon.[154] It would seem that they were also made to withstand the blow of pangherong bakal sa pisngi and to endure a matalas na punyal.[155] As a final step in the ritual, the neophyte Katipunero was made to sign membership papers with the his own blood.[156] It is believed that the Greek fraternity system was transported by the Americans to the Philippines in the late 19th century. As can be seen in the following instances, the manner of hazing in the United States was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa. Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting physical exercises that sometimes resulted in permanent physical damage; to eat or drink unpalatable foods; and in various ways to humiliate themselves.[157] In 1901, General Douglas MacArthur got involved in a congressional investigation of hazing at the academy during his second year at West Point.[158] In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the shriners hazing event, which was part of the initiation ceremonies for Hejaz membership.[159] The ritual involved what was known as the mattress-rotating barrel trick.[160] It required each candidate to slide down an eight to nine-foot-high metal board onto connected mattresses leading to a barrel, over which the candidate was required to climb. [161] Members of Hejaz would stand on each side of the mattresses and barrel and fun-paddle candidates en route to the barrel.[162] In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were seen performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte paratroopers chests.[163] The victims were shown writhing and crying out in pain as others pounded the spiked medals through the shirts and into the chests of the victims.[164]

In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha Psi invited male students to enter into a pledgeship program.[165] The fraternity members subjected the pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest, and the back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a heavy book and a cookie sheet while the pledges were on their hands and knees; various kicks and punches to the body; and body slamming, an activity in which active members of the fraternity lifted pledges up in the air and dropped them to the ground.[166] The fraternity members then put the pledges through a seven-station circle of physical abuse.[167] In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of the Kappa Alpha Order at the Auburn University in Alabama.[168]The hazing included the following: (1) having to dig a ditch and jump into it after it had been filled with water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or into pits and trash cans; (4) eating foods like peppers, hot sauce, butter, and yerks (a mixture of hot sauce, mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such as cleaning the fraternity house and yard, being designated as driver, and running errands; (6) appearing regularly at 2 a.m. meetings, during which the pledges would be hazed for a couple of hours; and (7) running the gauntlet, during which the pledges were pushed, kicked, and hit as they ran down a hallway and descended down a flight of stairs.[169] In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim Sylvester Lloyd was accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity. [170] He participated in initiation activities, which included various forms of physical beatings and torture, psychological coercion and embarrassment.[171] In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from hazing activities during the fraternitys initiation rites.[172] Kenner and the other initiates went through psychological and physical hazing, including being paddled on the buttocks for more than 200 times.[173] In Morton v. State, Marcus Jones a university student in Florida sought initiation into the campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year.[174] The pledges efforts to join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones, together with other candidates, was blindfolded, verbally harassed, and caned on his face and buttocks.[175] In these rituals described as preliminaries, which lasted for two evenings, he received approximately 60 canings on his buttocks.[176] During the last two days of the hazing, the rituals intensified.[177] The pledges sustained roughly 210 cane strikes during the four-night initiation.[178] Jones and several other candidates passed out.[179]

The purported raison dtre behind hazing practices is the proverbial birth by fire, through which the pledge who has successfully withstood the hazing proves his or her worth.[180] Some organizations even believe that hazing is the path to enlightenment. It is said that this process enables the organization to establish unity among the pledges and, hence, reinforces and ensures the future of the organization.[181] Alleged benefits of joining include leadership opportunities; improved academic performance; higher self-esteem; professional networking opportunities; and the esprit dcorp associated with close, almost filial, friendship and common cause.[182]

Anti-Hazing laws in the U.S. The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military.[183] The hazing of recruits and plebes in the armed services was so prevalent that Congress prohibited all forms of military hazing, harmful or not.[184] It was not until 1901 that Illinois passed the first state anti-hazing law, criminalizing conduct whereby any one sustains an injury to his [or her] person therefrom.[185] However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to Halt Useless College Killings and other similar organizations, that states increasingly began to enact legislation prohibiting and/or criminalizing hazing.[186] As of 2008, all but six states had enacted criminal or civil statutes proscribing hazing. [187]Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and carry relatively light consequences for even the most severe situations.[188] Only a few states with anti-hazing laws consider hazing as a felony in case death or great bodily harm occurs.[189] Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or great bodily harm, which is a Class 4 felony.[190] In a Class 4 felony, a sentence of imprisonment shall be for a term of not less than one year and not more than three years.[191] Indiana criminal law provides that a person who recklessly, knowingly, or intentionally performs hazing that results in serious bodily injury to a person commits criminal recklessness, a Class D felony.[192] The offense becomes a Class C felony if committed by means of a deadly weapon.[193] As an element of a Class C felony criminal recklessness resulting in serious bodily injury, death falls under the category of serious bodily injury.[194] A person who commits a Class C felony is imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years.[195] Pursuant to Missouri law, hazing is a Class A misdemeanor, unless the act creates a substantial risk to the life of the student or prospective member, in which case it becomes a Class C felony.[196] A Class C felony provides for an imprisonment term not to exceed seven years.[197]

In Texas, hazing that causes the death of another is a state jail felony.[198] An individual adjudged guilty of a state jail felony is punished by confinement in a state jail for any term of not more than two years or not less than 180 days.[199] Under Utah law, if hazing results in serious bodily injury, the hazer is guilty of a third-degree felony.[200] A person who has been convicted of a third-degree felony may be sentenced to imprisonment for a term not to exceed five years.[201] West Virginia law provides that if the act of hazing would otherwise be deemed a felony, the hazer may be found guilty thereof and subject to penalties provided therefor. [202] In Wisconsin, a person is guilty of a Class G felony if hazing results in the death of another. [203] A Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.[204] In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing statute.[205] This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry Ballous family resorted to a civil action for wrongful death, since there was no anti-hazing statute in South Carolina until 1994.[206] The existence of animus interficendi or intent to kill not proven beyond reasonable doubt The presence of an ex ante situation in this case, fraternity initiation rites does not automatically amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt that the perpetrators were equipped with a guilty mind whether or not there is a contextual background or factual premise they are still criminally liable for intentional felony. The trial court, the CA, and the Solicitor General are all in agreement that with the exception of Villareal and Dizon accused Tecson, Ama, Almeda, and Bantug did not have the animus interficendi or intent to kill Lenny Villa or the other neophytes. We shall no longer disturb this finding. As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries on him. It justified its finding of homicide against Dizon by holding that he had apparently been motivated by ill will while beating up Villa. Dizon kept repeating that his fathers parking space had been stolen by the victims father.[207] As to Villareal, the court said that the accused suspected the family of Bienvenido Marquez, one of the neophytes, to have had a hand in the death of Villareals brother.[208] The CA then ruled as follows: The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with evil and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa, appellants Dizon and Villareal must and should face the consequence of their acts, that is, to be held liable for the crime of homicide.[209] (Emphasis supplied)

We cannot subscribe to this conclusion. The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the existence of animus interficendi. For a full appreciation of the context in which the supposed utterances were made, the Court deems it necessary to reproduce the relevant portions of witness Marquezs testimony: Witness We were brought up into [Michael Musngis] room and we were briefed as to what to expect during the next three days and we were told the members of the fraternity and their batch and we were also told about the fraternity song, sir. xxxxxxxxx Witness We were escorted out of [Michael Musngis] house and we were made to ride a van and we were brought to another place in Kalookan City which I later found to be the place of Mariano Almeda, sir. xxxxxxxxx Witness Upon arrival, we were instructed to bow our head down and to link our arms and then the driver of the van and other members of the Aquilans who were inside left us inside the van, sir. xxxxxxxxx Witness We heard voices shouted outside the van to the effect, Villa akin ka, Asuncion Patay ka and the people outside pound the van, rock the van, sir. Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks uttered upon your arrival? Witness Some were almost shouting, you could feel the sense of excitement in their voices, sir. xxxxxxxxx Atty. Tadiar During all these times that the van was being rocked through and through, what were the voices or utterances that you heard? Witness Villa akin ka, Asuncion patay ka, Recinto patay ka sa amin, etc., sir. Atty. Tadiar And those utterances and threats, how long did they continue during the rocking of the van which lasted for 5 minutes? xxxxxxxxx Witness Even after they rocked the van, we still kept on hearing voices, sir.

xxxxxxxxx Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was there any utterances by anybody? Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging others who were pounding and beating us, it was just like a fiesta atmosphere, actually some of them enjoyed looking us being pounded, sir. Atty. Tadiar Do you recall what were those voices that you heard? Witness One particular utterance always said was, they asked us whether matigas pa yan, kayang-kaya pa niyan. Atty. Tadiar Do you know who in particular uttered those particular words that you quote? Witness I

cannot

particularly point to because there were utterances simultaneously, I could not really pin point who uttered those words, sir. xxxxxxxxx

Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol Express? Witness Yes, sir I heard utterances. Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you remember? Witness For example, one person particularly Boyet Dizon stepped on my thigh, he would say that and I quote ito, yung pamilya nito ay pinapatay yung kapatid ko, so that would in turn sort of justifying him in inflicting more serious pain on me. So instead of just walking, he would jump on my thighs and then after on was Lenny Villa. He was saying to the effect that this guy, his father stole the parking space of my father, sir. So, thats why he inflicted more pain on Villa and that went on, sir. Atty. Tadiar And you were referring to which particular accused? Witness Boyet Dizon, sir. Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family have his brother killed, what was your response? Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he said that I knew nothing of that

incident. However, he just in fact after the Bicol Express, he kept on uttering those words/statements so that it would in turn justify him and to give me harder blows, sir. xxxxxxxxx Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villas father stole the parking space allotted for his father, do you recall who were within hearing distance when that utterance was made? Witness Yes, sir. All of the neophytes heard that utterance, sir. xxxxxxxxx Witness There were different times made this accusation so there were different people who heard from time to time, sir. xxxxxxxxx Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny Villas father was made? Witness When we were line up against the wall, Boyet Dizon came near to us and when Lenny Villas turn, I heard him uttered those statements, sir. Atty. Tadiar What happened after he made this accusation to Lenny Villas father? Witness He continued to inflict blows on Lenny Villa. Atty. Tadiar How were those blows inflicted? Witness There were slaps and he knelt on Lenny Villas thighs and sometime he stand up and he kicked his thighs and sometimes jumped at it, sir. xxxxxxxxx Atty. Tadiar We would go on to the second day but not right now. You mentioned also that accusations made by Dizon you or your family had his brother killed, can you inform this Honorable Court what exactly were the accusations that were charged against you while inflicting blows upon you in particular? Witness While he was inflicting blows upon me, he told me in particular if I knew that his family who had his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story that he made up and I said that I knew nothing about it and he continued inflicting blows on me, sir. And another

incident was when a talk was being given, Dizon was on another part of the pelota court and I was sort of looking and we saw that he was drinking beer, and he said and I quote: Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin, sir. Atty. Tadiar What else? Witness Thats all, sir. Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came around as promised to you earlier? Witness No, sir.[210] (Emphasis supplied) On cross-examination, witness Bienvenido Marquez testified thus: Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there was a briefing that was conducted immediately before your initiation as regards to what to expect during the initiation, did I hear you right? Witness Yes, sir. Judge Purisima Who did the briefing? Witness Mr. Michael Musngi, sir and Nelson Victorino. Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during the initiation? Witness They told us at the time we would be brought to a particular place, we would be mocked at, sir. Judge Purisima So, you expected to be mocked at, ridiculed, humiliated etc., and the likes? Witness Yes, sir. Judge Purisima You were also told beforehand that there would be physical contact? Witness Yes, sir at the briefing. xxxxxxxxx Witness Yes, sir, because they informed that we could immediately go back to school. All the bruises would be limited to our arms and legs, sir. So, if we wear the regular school uniforms like long

sleeves, it would be covered actually so we have no thinking that our face would be slapped, sir. Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but that will be covered? Witness Yes, sir. JudgePurisima So, what kind of physical contact or implements that you expect that would create bruises to your body? Witness At that point I am already sure that there would be hitting by a paddling or paddle, sir. xxxxxxxxx Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is psychological in nature? Witness Combination, sir.[211] (Emphasis supplied) xxxxxxxxx Atty. Jimenez The initiation that was conducted did not consist only of physical initiation, meaning body contact, is that correct? Witness Yes, sir. Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct? Witness Yes, sir. Atty. Jimenez And this consisted of making you believe of things calculated to terrify you, scare you, correct? Witness Yes, sir. Atty. Jimenez In other words, the initiating masters made belief situation intended to, I repeat, terrify you, frighten you, scare you into perhaps quitting the initiation, is this correct? Witness Sometimes sir, yes. Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was supposed to have said according to you that your family were responsible for the killing of his brother who was an NPA, do you remember saying that? Witness Yes, sir.

Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did not believe him because that is not true, correct? Witness Yes, sir. Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have mentioned before, terrifying you, scaring you or frightening you into quitting the initiation, this is correct? Witness No, sir, perhaps it is one but the main reason, I think, why he was saying those things was because he wanted to inflict injury. Atty. Jimenez He did not tell that to you. That is your only perception, correct? Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting me. Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of initiation by all the initiating masters? You said that earlier, right? Witness Yes, sir. Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said something similar as was told to you by Mr. Dizon? Witness No, sir. Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run on your thighs, right? Witness Yes, sir. Atty. Jimenez This was the regular procedure that was followed by the initiating masters not only on you but also on the other neophytes? Witness Yes, sir. Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was administered by one master, was also administered by one master on a neophyte, was also administered by another master on the other neophyte, this is correct? Witness Yes, sir.[212] (Emphasis supplied)

According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal were baseless,[213] since the statements of the accused were just part of the psychological initiation calculated to instill fear on the part of the neophytes; that [t]here is no element of truth in it as testified by Bienvenido Marquez; and that the harsh words uttered by Petitioner and Villareal are part of tradition concurred and accepted by all the fraternity members during their initiation rites.[214] We agree with the Solicitor General. The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on the part of the CA it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot be tolerated, especially because it was the CAs primary basis for finding that Villarreal had the intent to kill Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat, according to Bienvenido Marquezs testimony, as reproduced above, it was Dizon who uttered both accusations against Villa and Marquez; Villareal had no participation whatsoever in the specific threats referred to by the CA. It was Boyet Dizon [who] stepped on [Marquezs] thigh; and who told witness Marquez, [I]to, yung pamilya nito ay pinapatay yung kapatid ko. It was also Dizon who jumped on Villas thighs while saying, [T]his guy, his father stole the parking space of my father. With the testimony clarified, we find that the CA had no basis for concluding the existence of intent to kill based solely thereon. As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu and contextual premise of the incident to fully appreciate and understand the testimony of witness Marquez. At the outset, the neophytes were briefed that they would be subjected to psychological pressure in order to scare them. They knew that they would be mocked, ridiculed, and intimidated. They heard fraternity members shout, Patay ka, Recinto, Yari ka, Recinto, Villa, akin ka, Asuncion, gulpi ka, Putang ina mo, Asuncion, Putang ina nyo, patay kayo sa amin, or some other words to that effect.[215] While beating the neophytes, Dizon accused Marquez of the death of the formers purported NPA brother, and then blamed Lenny Villas father for stealing the parking space of Dizons father. According to the Solicitor General, these statements, including those of the accused Dizon, were all part of the psychological initiation employed by the Aquila Fraternity.[216] Thus, to our understanding, accused Dizons way of inflicting psychological pressure was through hurling make-believe accusations at the initiates. He concocted the fictitious stories, so that he could justify giving the neophytes harder blows, all in the context of fraternity initiation and role playing. Even one of the neophytes admitted that the accusations were untrue and made-up.

The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the Senate deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows:

Senator Lina. -- so as to capture the intent that we conveyed during the period of interpellations on why we included the phrase or psychological pain and suffering. xxxxxxxxx So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or neophyte is made to undergo certain acts which I already described yesterday, like playing the Russian roulette extensively to test the readiness and the willingness of the neophyte or recruit to continue his desire to be a member of the fraternity, sorority or similar organizationor playing and putting a noose on the neck of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth floor of the building facing outside, asking him to jump outside after making him turn around several times but the reality is that he will be made to jump towards the inside portion of the building these are the mental or psychological tests that are resorted to by these organizations, sororities or fraternities. The doctors who appeared during the public hearing testified that such acts can result in some mental aberration, that they can even lead to psychosis, neurosis or insanity. This is what we want to prevent.[217] (Emphasis supplied) Thus, without proof beyond reasonable doubt, Dizons behavior must not be automatically viewed as evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context of the fraternitys psychological initiation. This Court points out that it was not even established whether the fathers of Dizon and Villa really had any familiarity with each other as would lend credence to the veracity of Dizons threats. The testimony of Lennys co-neophyte, Marquez, only confirmed this view. According to Marquez, he knew it was not true and that [Dizon] was just making it up.[218] Even the trial court did not give weight to the utterances of Dizon as constituting intent to kill: [T]he cumulative acts of all the accused were not directed toward killing Villa, but merely to inflict physical harm as part of the fraternity initiation rites x x x.[219] The Solicitor General shares the same view. Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of the Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and should not be inferred unless there is proof beyond reasonable doubt of such intent.[220] Instead, we adopt and reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity members had the specific intent to kill Lenny Villa.[221] The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then posits that since all of the accused fraternity members conspired to inflict physical injuries on Lenny Villa

and death ensued, all of them should be liable for the crime of homicide pursuant to Article 4(1) of the Revised Penal Code. In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal Code,[222] the employment of physical injuries must be coupled with dolus malus. As an act that is mala in se, the existence of malicious intent is fundamental, since injury arises from the mental state of the wrongdoer iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there must be a specific animus iniuriandi or malicious intention to do wrong against the physical integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions are.[223] Thus, we have ruled in a number of instances[224] that the mere infliction of physical injuries, absent malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v. People,[225] the accused teacher, using a bamboo stick, whipped one of her students behind her legs and thighs as a form of discipline. The student suffered lesions and bruises from the corporal punishment. In reversing the trial courts finding of criminal liability for slight physical injuries, this Court stated thus: Independently of any civil or administrative responsibility [w]e are persuaded that she did not do what she had done with criminal intent the means she actually used was moderate and that she was not motivated by ill-will, hatred or any malevolent intent. Considering the applicable laws, we then ruled that as a matter of law, petitioner did not incur any criminal liability for her act of whipping her pupil. In People v. Carmen,[226] the accused members of the religious group known as the Missionaries of Our Lady of Fatima under the guise of a ritual or treatment plunged the head of the victim into a barrel of water, banged his head against a bench, pounded his chest with fists, and stabbed him on the side with a kitchen knife, in order to cure him of nervous breakdown by expelling through those means the bad spirits possessing him. The collective acts of the group caused the death of the victim. Since malicious intent was not proven, we reversed the trial courts finding of liability for murder under Article 4 of the Revised Penal Code and instead ruled that the accused should be held criminally liable for reckless imprudence resulting in homicide under Article 365 thereof. Indeed, the threshold question is whether the accuseds initial acts of inflicting physical pain on the neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the Revised Penal Code, thereby making it subject to Article 4(1) thereof. In People v. Regato, we ruled that malicious intent must be judged by the action, conduct, and external acts of the accused.[227] What persons do is the best index of their intention.[228] We have also ruled that the method employed, the kind of weapon used, and the parts of the body on which the injury was inflicted may be determinative of the intent of the perpetrator.[229] The Court shall thus examine the whole contextual background surrounding the death of Lenny Villa.

Lenny died during Aquilas fraternity initiation rites. The night before the commencement of the rites, they were briefed on what to expect. They were told that there would be physical beatings, that the whole event would last for three days, and that they could quit anytime. On their first night, they were subjected to traditional initiation rites, including the Indian Run, Bicol Express, Rounds, and the Auxies Privilege Round. The beatings were predominantly directed at the neophytes arms and legs. In the morning of their second day of initiation, they were made to present comic plays and to play rough basketball. They were also required to memorize and recite the Aquila Fraternitys principles. Late in the afternoon, they were once again subjected to traditional initiation rituals. When the rituals were officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another traditional ritual paddling by the fraternity. During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the neophytes by functioning as human barriers and shielding them from those who were designated to inflict physical and psychological pain on the initiates. [230] It was their regular duty to stop foul or excessive physical blows; to help the neophytes to pump their legs in order that their blood would circulate; to facilitate a rest interval after every physical activity or round; to serve food and water; to tell jokes; to coach the initiates; and to give them whatever they needed. These rituals were performed with Lennys consent.[231] A few days before the rites, he asked both his parents for permission to join the Aquila Fraternity. [232] His father knew that Lenny would go through an initiation process and would be gone for three days. [233] The CA found as follows: It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join the initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were given briefings on what to expect. It is of common knowledge that before admission in a fraternity, the neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods such as mocking, psychological tests and physical punishment would take place. They knew that the initiation would involve beatings and other forms of hazing. They were also told of their right and opportunity to quit at any time they wanted to. In fact, prosecution witness Navera testified that accused Tecson told him that after a week, you can already play basketball. Prosecution witness Marquez for his part, admitted that he knew that the initiates would be hit in the arms and legs, that a wooden paddle would be used to hit them and that he expected bruises on his arms and legs. Indeed, there can be no fraternity initiation without consenting neophytes.[234] (Emphasis supplied)

Even after going through Aquilas grueling traditional rituals during the first day, Lenny continued his participation and finished the second day of initiation.

Based on the foregoing contextual background, and absent further proof showing clear malicious intent, we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition. Although the additional rounds on the second night were held upon the insistence of Villareal and Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the accused fraternity members still participated in the rituals, including the paddling, which were performed pursuant to tradition. Other than the paddle, no other weapon was used to inflict injuries on Lenny. The targeted body parts were predominantly the legs and the arms. The designation of roles, including the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those who wished to join the fraternity went through the same process of traditional initiation; there is no proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress itself recognized that hazing is uniquely different from common crimes.[235] The totality of the circumstances must therefore be taken into consideration. The underlying context and motive in which the infliction of physical injuries was rooted may also be determined by Lennys continued participation in the initiation and consent to the method used even after the first day. The following discussion of the framers of the 1995 AntiHazing Law is enlightening: SENATOR GUINGONA. Most of these acts, if not all, are already punished under the Revised Penal Code. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. If hazing is done at present and it results in death, the charge would be murder or homicide. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or serious physical injuries. SENATOR LINA. That is correct, Mr. President. SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be penalized under rape or acts of lasciviousness. SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. So, what is the rationale for making a new offense under this definition of the crime of hazing? SENATOR LINA. To discourage persons or group of persons either composing a sorority, fraternity or any association from making this requirement of initiation that has already resulted in these specific acts or results, Mr. President. That is the main rationale. We want to send a strong signal across the land that no group or association can require the act of physical initiation before a person can become a member without being held criminally liable. xxxxxxxxx SENATOR GUINGONA. Yes, but what would be the rationale for that imposition? Because the distinguished Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an initiation into a club or organization, he is seeking the punishment of certain acts that resulted in death, et cetera as a result of hazing which are already covered crimes. The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it may be a legitimate defense for invoking two or more charges or offenses, because these very same acts are already punishable under the Revised Penal Code. That is my difficulty, Mr. President. SENATOR LINA. x x x Another point, Mr. President, is this, and this is a very telling difference: When a person or group of persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit a wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr. President, let us say there is death or there is homicide, mutilation, if one files a case, then the intention to commit a wrong has to be proven. But if the crime of hazing is the basis, what is important is the result from the act of hazing. To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that they should really shun this activity called hazing. Because, initially, these fraternities or sororities do not even consider having a neophyte killed or maimed or that acts of lasciviousness are even committed initially, Mr. President. So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay pa tayo, na saka lamang natin isasakdal

ng murder kung namatay na, ay after the fact ho iyon. Pero, kung sasabihin natin sa mga kabataan na: Huwag ninyong gagawin iyong hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo. xxxxxxxxx SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again disturbed by his statement that the prosecution does not have to prove the intent that resulted in the death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or deranged mind. We do not have to prove the willful intent of the accused in proving or establishing the crime of hazing. This seems, to me, a novel situation where we create the special crime without having to go into the intent, which is one of the basic elements of any crime. If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a new society or a new club is, per se, not punishable at all. What are punishable are the acts that lead to the result. But if these results are not going to be proven by intent, but just because there was hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr. President. SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized because in the context of what is happening in the sororities and fraternities, when they conduct hazing, no one will admit that their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act and we want it stopped, deterred, discouraged. If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the masters intended to maim. What is important is the result of the act of hazing. Otherwise, the masters or those who inflict the physical pain can easily escape responsibility and say, We did not have the intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or maim. This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the elements if they are separate offenses. xxxxxxxxx SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a person died. The charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to prove conspiracy or not anymore? SENATOR LINA. Mr. President, if the person is present during hazing x x x

SENATOR GUINGONA. The persons are present. First, would the prosecution have to prove conspiracy? Second, would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs, there is no need to prove intent to kill. SENATOR GUINGONA. But the charge is murder. SENATOR LINA. That is why I said that it should not be murder. It should be hazing, Mr. President. [236] (Emphasis supplied)

During a discussion between Senator Biazon and Senator Lina on the issue of whether to include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus: SENATOR BIAZON. Mr. President, this Representation has no objection to the inclusion of sodomy as one of the conditions resulting from hazing as necessary to be punished. However, the act of sodomy can be committed by two persons with or without consent. To make it clearer, what is being punished here is the commission of sodomy forced into another individual by another individual. I move, Mr. President, that sodomy be modified by the phrase without consent for purposes of this section. SENATOR LINA. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only going to aggravate the crime of hazing if it is done without consent will change a lot of concepts here. Because the results from hazing aggravate the offense with or without consent. In fact, when a person joins a fraternity, sorority, or any association for that matter, it can be with or without the consent of the intended victim. The fact that a person joins a sorority or fraternity with his consent does not negate the crime of hazing. This is a proposed law intended to protect the citizens from the malpractices that attend initiation which may have been announced with or without physical infliction of pain or injury, Mr. President. Regardless of whether there is announcement that there will be physical hazing or whether there is none, and therefore, the neophyte is duped into joining a fraternity is of no moment. What is important is that there is an infliction of physical pain. The bottom line of this law is that a citizen even has to be protected from himself if he joins a fraternity, so that at a certain point in time, the State, the individual, or the parents of the victim can run after the perpetrators of the crime, regardless of whether or not there was consent on the part of the victim.

xxxxxxxxx SENATOR LINA. Mr. President, I understand the position taken by the distinguished Gentleman from Cavite and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and practices.

In this bill, we are not going to encroach into the private proclivities of some individuals when they do their acts in private as we do not take a peek into the private rooms of couples. They can do their thing if they want to make love in ways that are not considered acceptable by the mainstream of society. That is not something that the State should prohibit. But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be entered into with consent. It is not only sodomy. The infliction of pain may be done with the consent of the neophyte. If the law is passed, that does not make the act of hazing not punishable because the neophyte accepted the infliction of pain upon himself. If the victim suffers from serious physical injuries, but the initiator said, Well, he allowed it upon himself. He consented to it. So, if we allow that reasoning that sodomy was done with the consent of the victim, then we would not have passed any law at all. There will be no significance if we pass this bill, because it will always be a defense that the victim allowed the infliction of pain or suffering. He accepted it as part of the initiation rites. But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of consent will not apply because the very act of inflicting physical pain or psychological suffering is, by itself, a punishable act. The result of the act of hazing, like death or physical injuries merely aggravates the act with higher penalties. But the defense of consent is not going to nullify the criminal nature of the act. So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without consent of the victim, then the whole foundation of this proposed law will collapse. SENATOR BIAZON. Thank you, Mr. President. SENATOR LINA. Thank you very much. THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The Chair hears none; the same is approved.[237] (Emphasis supplied) Realizing the implication of removing the states burden to prove intent, Senator Lina, the principal author of the Senate Bill, said:

I am very happy that the distinguished Minority Leader brought out the idea of intent or whether there it is mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to go to. If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that suggestion, Mr. President.[238](Emphasis supplied) Thus, having in mind the potential conflict between the proposed law and the core principle of mala in se adhered to under the Revised Penal Code, Congress did not simply enact an amendment thereto. Instead, it created a special law on hazing, founded upon the principle of mala prohibita. This dilemma faced by Congress is further proof of how the nature of hazing unique as against typical crimes cast a cloud of doubt on whether society considered the act as an inherently wrong conduct or mala in se at the time. It is safe to presume that Lennys parents would not have consented[239] to his participation in Aquila Fraternitys initiation rites if the practice of hazing were considered by them as mala in se. Furthermore, in Vedaa v. Valencia (1998), we noted through Associate Justice (now retired Chief Justice) Hilario Davide that in our nations very recent history, the people have spoken, through Congress, to deem conduct constitutive of hazing, [an] act[] previously considered harmless by custom, as criminal.[240] Although it may be regarded as a simple obiter dictum, the statement nonetheless shows recognition that hazing or the conduct of initiation rites through physical and/or psychological suffering has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law, there was to some extent a lacuna in the law; hazing was not clearly considered an intentional felony. And when there is doubt on the interpretation of criminal laws, all must be resolved in favor of the accused. In dubio pro reo. For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial courts finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof beyond reasonable doubt of the existence of malicious intent to inflict physical injuries or animus iniuriandi as required in mala in se cases, considering the contextual background of his death, the unique nature of hazing, and absent a law prohibiting hazing. The accused fraternity members guilty of reckless imprudence resulting in homicide The absence of malicious intent does not automatically mean, however, that the accused fraternity members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from which an immediate personal harm, injury or material damage results by reason of an inexcusable lack of precaution or advertence on the part of the person committing it. [241] In this case, the danger is visible and consciously appreciated by the actor.[242] In contrast, simple imprudence or negligence comprises an act done without grave fault, from which an injury or material damage ensues by reason of a mere lack of foresight or skill. [243] Here, the threatened harm is not immediate, and the danger is not openly visible. [244] The test[245] for determining whether or not a person is negligent in doing an act is as follows: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the doer the duty to take precaution against the mischievous results of the act. Failure to do so constitutes negligence.[246] As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of precaution and diligence required varies with the degree of the danger involved. [247] If, on account of a certain line of conduct, the danger of causing harm to another person is great, the individual who chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or avoid damage or injury.[248] In contrast, if the danger is minor, not much care is required.[249] It is thus possible that there are countless degrees of precaution or diligence that may be required of an individual, from a transitory glance of care to the most vigilant effort.[250] The duty of the person to employ more or less degree of care will depend upon the circumstances of each particular case.[251] There was patent recklessness in the hazing of Lenny Villa. According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple traumatic injuries.[252] The officer explained that cardiac failure refers to the failure of the heart to work as a pump and as part of the circulatory system due to the lack of blood.[253] In the present case, the victims heart could no longer work as a pumping organ, because it was deprived of its requisite blood and oxygen.[254] The deprivation was due to the channeling of the blood supply from the entire circulatory system including the heart, arteries, veins, venules, and capillaries to the thigh, leg, and arm areas of Lenny, thus causing the formation of multiple hematomas or blood clots.[255] The multiple hematomas were wide, thick, and deep,[256] indicating that these could have resulted mainly from injuries sustained by the victim from fist blows, knee blows, paddles, or the like.[257] Repeated blows to those areas caused the blood to gradually ooze out of the capillaries until the circulating blood became so markedly diminished as to produce death. [258] The officer also found that the brain, liver, kidney, pancreas, intestines, and all other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale due to the lack of blood, which was redirected to the thighs and forearms.[259] It was concluded that there was nothing in the heart that would indicate that the victim suffered from a previous cardiac arrest or disease.[260]

The multiple hematomas or bruises found in Lenny Villas arms and thighs, resulting from repeated blows to those areas, caused the loss of blood from his vital organs and led to his eventual death. These hematomas must be taken in the light of the hazing activities performed on him by the Aquila Fraternity. According to the testimonies of the co-neophytes of Lenny, they were punched, kicked, elbowed, kneed, stamped on; and hit with different objects on their arms, legs, and thighs.[261] They were also paddled at the back of their thighs or legs;[262] and slapped on their faces.[263] They were made to play rough basketball.[264] Witness Marquez testified on Lenny, saying: [T]inamaan daw sya sa spine.[265] The NBI medico-legal officer explained that the death of the victim was the cumulative effect of the multiple injuries suffered by the latter.[266] The relevant portion of the testimony is as follows: Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of defense counsels that the injuries that you have enumerated on the body of the deceased Lenny Villa previously marked as Exhibit G-1 to G-14 individually by themselves would not cause the death of the victim. The question I am going to propound to you is what is the cumulative effect of all of these injuries marked from Exhibit G1 to G-14? Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to isolate such injuries here because we are talking of the whole body. At the same manner that as a car would not run minus one (1) wheel. No, the more humane in human approach is to interpret all those injuries in whole and not in part.[267] There is also evidence to show that some of the accused fraternity members were drinking during the initiation rites.[268] Consequently, the collective acts of the fraternity members were tantamount to recklessness, which made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe to their initiates a duty of care not to cause them injury in the process.[269] With the foregoing facts, we rule that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-legal officer found that the victims death was the cumulative effect of the injuries suffered, criminal responsibility redounds to all those who directly participated in and contributed to the infliction of physical injuries. It appears from the aforementioned facts that the incident may have been prevented, or at least mitigated, had the alumni of Aquila Fraternity accused Dizon and Villareal restrained themselves from insisting on reopening the initiation rites. Although this point did not matter in the end, as records would show that the other fraternity members participated in the reopened initiation

rites having in mind the concept of seniority in fraternities the implication of the presence of alumni should be seen as a point of review in future legislation. We further note that some of the fraternity members were intoxicated during Lennys initiation rites. In this light, the Court submits to Congress, for legislative consideration, the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would increase the applicable penalties. It is truly astonishing how men would wittingly or unwittingly impose the misery of hazing and employ appalling rituals in the name of brotherhood. There must be a better way to establish kinship. A neophyte admitted that he joined the fraternity to have more friends and to avail himself of the benefits it offered, such as tips during bar examinations. [270] Another initiate did not give up, because he feared being looked down upon as a quitter, and because he felt he did not have a choice.[271] Thus, for Lenny Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By giving consent under the circumstances, they left their fates in the hands of the fraternity members. Unfortunately, the hands to which lives were entrusted were barbaric as they were reckless. Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then, these five accused fraternity members would have all been convicted of the crime of hazing punishable by reclusion perpetua (life imprisonment).[272] Since there was no law prohibiting the act of hazing when Lenny died, we are constrained to rule according to existing laws at the time of his death. The CA found that the prosecution failed to prove, beyond reasonable

doubt,

Victorino et al.s individual participation in the infliction of physical injuries upon Lenny Villa.[273] As to accused Villareal, his criminal liability was totally extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code. Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight physical injuries to reckless imprudence resulting in homicide shall apply only with respect to accused Almeda, Ama, Bantug, and Tecson. The accused liable to pay damages The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of ₱50,000 as civil indemnity ex delicto and ₱1,000,000 as moral damages, to be jointly and severally paid by accused Dizon and Villareal. It also awarded the amount of ₱30,000 as indemnity to be jointly and severally paid by accused Almeda, Ama, Bantug, and Tecson.

Civil indemnity ex delicto is automatically awarded for the sole fact of death of the [274]

victim. In accordance with prevailing jurisprudence,[275] we sustain the CAs award of indemnity in the amount of ₱50,000. The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred in connection with the death of the victim, so long as the claim is supported by tangible documents.[276] Though we are prepared to award actual damages, the Court is prevented from granting them, since the records are bereft of any evidence to show that actual expenses were incurred or proven during trial. Furthermore, in the appeal, the Solicitor General does not interpose any claim for actual damages.[277] The heirs of the deceased may recover moral damages for the grief suffered on account of the victims death.[278] This penalty is pursuant to Article 2206(3) of the Civil Code, which provides that the spouse, legitimate and illegitimate descendants and the ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.[279] Thus, we hereby we affirm the CAs award of moral damages in the amount of ₱1,000,000. WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED and SET ASIDE IN PART. The appealed Judgment in G.R. No. 154954 finding Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical injuries is also MODIFIED and SET ASIDE IN PART. Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson are found GUILTY beyond reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365 in relation to Article 249 of the Revised Penal Code. They are hereby sentenced to suffer an indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum. In addition, accused are ORDERED jointly and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of ₱50,000, and moral damages in the amount of ₱1,000,000, plus legal interest on all damages awarded at the rate of 12% from the date of the finality of this Decision until satisfaction.[280]Costs de oficio. The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED. Finally, pursuant to Article 89(1) of the Revised Penal Code, the Petition in G.R. No. 151258 is hereby dismissed, and the deemed CLOSED and TERMINATED.

criminal

case

against

Artemio

Villareal

Let copies of this Decision be furnished to the Senate President and the Speaker of the House of Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non-resident or alumni fraternity members during hazing as aggravating circumstances that would increase the applicable penalties. SO ORDERED.

THE UNITED STATES, Plaintiff-Appellee, v. CARSON TAYLOR, Defendant-Appellant. C. W O’Brien, for Appellant. Solicitor-General Corpus, for Appellee. SYLLABUS 1. LIBEL AND SLANDER; PUBLICATION; EDITOR, AUTHOR, PROPRIETOR, MANAGER. — Section 6 of the Libel Law (Act No. 277) provides a punishment only for the "author, editor, or proprietor," for the publication of a libel in a newspaper. In the present case no person was represented to be either the "author, the editor, or the proprietor" of the newspaper in which the alleged libel was published. The proof shows that the defendant was the "manager." There was not a word of proof showing that as "manager" he was the author of the article published or the editor or the proprietor of the newspaper. The "manager" of a newspaper may be the author of the articles published or the editor or the publisher of the newspaper. His exact relation to the newspaper or publication is a matter of proof. He can not avoid responsibility as the "author, editor, or proprietor" by using some other term or word, when, as a matter of fact, he is the "author, editor, or proprietor." The "author, editor, or proprietor" of a newspaper or publication can not avoid responsibility by simply calling himself the "manager" or "printer." He can not wear the toga of "author, editor, or proprietor" and hide his responsibility by giving himself some other name. While the terms "author, editor, and proprietor" of a newspaper are terms well defined, the particular words "author, editor, or proprietor" are not material or important, further than they are words which are intended to show the relation of the responsible party to the publication. That relation may as well exist under some other name or denomination.

DECISION

JOHNSON, J. :

This was an action for criminal libel. The complaint alleged:jgc:chanrobles.com.ph "That on the 25th day of September, 1913, the said Carson Taylor, being then and there the acting editor and proprietor, manager, printer, and publisher in the city of Manila, Philippine Islands, of a certain daily bilingual newspaper, edited in the English and Spanish languages, and known as the ‘Manila Daily Bulletin,‘ a paper of large circulation throughout the Philippine Islands, as well as in the United States and other countries in all of which both languages are spoken and written, having as such the supervision and control of said newspaper, did then and there willfully, feloniously, maliciously, and with intent to impeach the honesty, virtue, and reputation of one Ramon Sotelo as member of the bar of the Philippine Islands and as a private individual, and to expose him to public hatred, contempt and ridicule, compose, print, edit, publish, and circulate and procure to be composed, printed, edited, published, and circulated in said newspaper‘s issue of the above mentioned date, September 25, 1913, a certain false and malicious defamation and libel in the English language of and concerning the said Ramon Sotelo, which reads as follows. :jgc:chanrobles.com.ph

"‗OWNERS FIRED BUILDING TO COLLECT INSURANCE. — CRIMINAL CHARGES FOLLOW CIVIL SUIT. "‗Conspiracy divulged in three sworn statements made by members of the party after a family disagreement. Sensational statement sworn to. Mystery of Calle O‘Donnell fire solved and papers served. "‗Conspiracy to defraud the insurance company. "‗The building was fired to collect the amount of insurance. "‗The movable furniture of value was removed before the fire. "‗The full amount of the insurance was collected, and the conspiracy was a success. "‗The above is the gist of the sworn statements of Vicente Sotelo and Eugenio Martin in connection with the fire that destroyed house No. 2157 Calle O‘Donnell on April 4. "‗The case in question is a sensational one to say .he least, and the court is being petitioned to set aside the ruling and cite the parties to show cause why they should not be cited to answer charges of conspiracy to defraud. "‗On April 4, 1913, the house located at 2157 Calle O‘Donnell was destroyed by fire. The house was insured for P5,000, the contents for an additional P5,000, with the West of Scotland Insurance Association, of which Lutz & Co. are the local agents, with an additional P1,500 with Smith, Bell & Co. "‗The full amount of the insurance on the property was paid by the agents of the insurance companies and the matter apparently dropped from the records. "‗Then there was internal trouble and information began to leak out which resulted in sensational statements to the effect that the destruction of the property had been an act of incendiarism in order to collect the insurance. Then there was an investigation started and it resulted in sworn statements of the three persons above mentioned. "‗Notarial returns were made yesterday by the sheriff, based on the sworn statements and the parties are cited to appear in court and show cause. "‗The investigation also showed that the furniture, which was supposed to be in the house at the time of the conflagration and which was paid for by the insurance agents, sworn statements having been made that it was destroyed in the fire, was in a certain house in Montalban, where it was identified upon the sworn statements of the above mentioned. Implicated in the charges of conspiracy and fraud is the name of the attorney for the plaintiff who made affidavit as to the burning of the house and against whom criminal proceedings will be brought as well as against the original owners. "‗Attorney Burke, who represents Lutz & Co. in the proceedings, was seen last night and asked for a statement as to the case. Mr. Burke refused to talk on the case and stated that when it came to trial it would be time enough to obtain the facts. "‗The present action came before the court on a motion of Attorney Burke to set aside the

judgment, which, in the original case, gave the owners of the property judgment for the amount of the insurance. "‗Attorney Burke filed the sworn statements with the court and the notarial returns to the same were made yesterday afternoon, the sworn statements as to the burning of the house being in the hands of the sheriff. "‗It was stated yesterday that a criminal action would follow the civil proceedings instituted to recover the funds in the case entitled on the court records, Maria Mortera de Eceiza and Manuel Eceiza versus the west of Scotland Association, Limited, No. 10191 on the court records. "‗It might be stated also that Eugenio Martin was one of the plaintiffs in the recent suit brought against Ex Governor W. Cameron Forbes for lumber supplied for his Boston home.‘ "That in this article is contained the following paragraph. to wit:jgc:chanrobles.com.ph "‗ . . .Implicated in the charges of conspiracy and fraud is the name of the attorney for the plaintiff who made affidavit as to the burning of the house and against whom criminal proceedings will be brought as well as against the original owners,‘ by which the said accused meant to refer and did refer to the said Ramon Sotelo, who then and there was the attorney for the plaintiff in the case aforesaid, No. 10191 of the Court of First Instance of the city of Manila, and so was understood by the public who read the same; that the statements and allegations made in said paragraph are wholly false and untrue, thus impeaching the honesty, virtue and reputation of the said offended party as a member of the bar of the Philippine Islands and as a private individual, and exposing him to public hatred, contempt and ridicule. Contrary to law."cralaw virtua1aw library Upon said complaint the defendant was arrested, arraigned, plead not guilty, was tried, found guilty of the crime charged, and sentenced by the Honorable George N. Hurd, judge, to pay a fine of P200. From that sentence the defendant appealed to this court and made the following assignment of error:jgc:chanrobles.com.ph "First. The court erred in finding that the defendant was responsible for and guilty of the alleged libel. "Second. The court erred in finding that the defendant was the proprietor and publisher of the ‘Manila Daily Bulletin.‘ "Third. The court erred in finding that the alleged libelous article was libelous per se. "Fourth. The court erred in holding that the article was libelous, while finding that there was no malice. "Fifth. The court erred in finding that the alleged libelous article referred to attorney Ramon Sotelo. "Sixth. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in case No. 10191, when the alleged libel was published."cralaw virtua1aw library After a careful examination of the record and the arguments presented by the appellant, we deem it necessary to discuss only the first and second assignments of error.

In the Philippine Islands there exist no crimes such as are known in the United States and England as common law crimes. No act constitutes a crime here unless it is made so by law. Libel is made a crime here by Act No. 277 of the United States Philippine Commission. Said Act (No. 277) not only defines the crime of libel and prescribes the particular conditions necessary to constitute it, but it also names the persons who may be guilty of such crime. In the present case the complaint alleges that the defendant was, at the time of the publication of said alleged article "the acting editor, proprietor, manager, printer, publisher, etc. etc. of a certain bilingual newspaper, etc., known as the ‘Manila Daily Bulletin,‘ a paper of large circulation throughout the Philippine Islands, as well as in the United States and other countries."cralaw virtua1aw library It will be noted that the complaint charges the defendant as "the acting editor, proprietor, manager, printer, and publisher." From an examination of said Act No. 277, we find that section 6 provides that: "Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of said book or number of each newspaper or serial as fully as if he were the author of the same."cralaw virtua1aw library By an examination of said article, with reference to the persons who may be liable for the publication of a libel in a newspaper, we find that it only provides for the punishment of "the author, editor, or proprietor." It would follow, therefore, that unless the proof shows that the defendant in the present case is the "author, editor, or proprietor" of the newspaper in which the libel was published, he can not be held liable. In the present case the Solicitor-General in his brief said that — "No person is represented to be either the ‘author, editor, or proprietor.‘" That statement of the Solicitor-General is fully sustained by the record. There is not a word of proof in the record showing that the defendant was either the "author, the editor, or the proprietor." The proof shows that the defendant was the "manager." He must, therefore, be acquitted of the crime charged against him, unless it is shown by the proof that he, as "manager" of the newspaper, was in some way directly responsible for the writing, editing, or publishing of the matter contained in said alleged libelous article. The prosecution presented the newspaper, the "Manila Daily Bulletin," for the purpose of showing the relation which the defendant had to it. That was the only proof presented by the prosecution to show the relation which the defendant had to the publication of the libel in question. From an examination of the editorial page of said exhibit, we find that it shows that the "Manila Daily Bulletin" is owned by the "Bulletin Publishing Company," and that the defendant was its manager. There is not a word of proof in the record which shows what relation the manager had to the publication of said newspaper. We might, by a series of presumptions and assumptions, conclude that the manager of a newspaper has some direct responsibility with its publication. We believe, however, that such presumptions and assumptions, in the absence of a single letter of proof relating thereto, would be unwarranted and unjustified. The prosecuting attorney had an opportunity to present proof upon that question. Either because he had no proof or because no such proof was obtainable, he presented none. It certainly is not a difficult matter to ascertain who is the real person responsible for the publication of a newspaper which is published daily and has a wide circulation in a particular community. No question was asked the defendant concerning his particular relation to the publication of the newspaper in question. We do not desire to be understood in our conclusions here as holding that the "manager" or the "printer" may not, under certain conditions and proper proof, be held to be the "author, editor, or proprietor" of a newspaper. He may denominate himself as "manager" or "printer" simply, and be at the same time the "author, editor, or proprietor" of the newspaper. He can not avoid responsibility by using some other term or word, indicating his relation to the newspaper or the publication, when, as a matter of fact, he is the "author, the editor, or the proprietor" of the

same. His real relation to the said publication is a matter of proof. The Solicitor-General, in his brief, says that the defendant used the word "manager" with the hope of evading legal responsibility, as the Libel Law places the responsibility for publishing a libel, on "every author, editor, or proprietor of any book, etc." Had the prosecuting attorney in the trial of the cause believed that the defendant, even though he called himself the "manager" was, in fact, the "author, editor, or proprietor" of said publication, he should have presented some proof supporting that contention. Neither do we desire to be understood as holding that simply because a person connected with the publication of a newspaper who calls himself the "manager" or "printer" may not, in fact and at the same time, be the "author, editor, or proprietor." The "author, editor, or proprietor" can not avoid responsibility for the writing and publication of a libelous article, by simply calling himself the "manager" or the "printer" of a newspaper. That, however, is a question of proof. The burden is upon the prosecution to show that the defendant is, by whatever name he may call himself, in truth and in fact, the "author, editor, or proprietor" of a newspaper. The courts cannot assume, in the absence of proof, that one who called himself "manager" was in fact the "author, editor, or proprietor." We might assume, perhaps, that the ‘‘manager" of a newspaper plays an important part in the publication of the same by virtue of the general signification of the word "manager." Men can not, however, be sentenced upon the basis of a mere assumption. There must be some proof. The word "manage" has been defined by Webster to mean "to have under control and direction; to conduct; to guide; to administer; to treat; to handle." Webster defines "manager" to be "one who manages; a conductor or director; as, the manager of a theater." A manager, as that word is generally understood, we do not believe includes the idea of ownership. Generally speaking it means one who is representing another as an agent. That being true, his powers and duties and obligations are generally defined by contract. He may have expressed as well as implied powers, but whatever his powers and duties are they must be dependent upon the nature of the business and the terms of his contract. There is no fixed rule which indicates particularly and definitely his duties, powers and obligations. An examination into the character of the business and the contract of his employment must be made for the purpose of ascertaining definitely what his duties and obligations are. His exact relation is always a matter of proof. It is incumbent upon the prosecution in a case like the present, to show that whatever title, name or designation the defendant may bear, he was, in fact, the "author, the editor, or the proprietor" of the newspaper. If he was in fact the "author, editor, or proprietor," he can not escape responsibility by calling himself the "manager" or "printer." It is the relation which he bears to the publication and not the name or title which he has assumed, which is important in an investigation. He can not wear the toga of author or editor and hide his responsibility by giving himself some other name. While the terms "author, editor, and proprietor" of a newspaper are terms well defined, the particular words "author, editor, or proprietor" are not material or important, further than that they are words which are intended to show the relation of the responsible party to the publication. That relation may as well exist under some other name or denomination. For the foregoing reasons. therefore, there being no proof whatever in the record showing that the defendant was the "author, the editor, or the proprietor" of the newspaper in question, the sentence of the lower court must be reversed, the complaint dismissed and the defendant discharged from the custody of the law, with costs de officio. So ordered. Arellano, C.J., Moreland, Trent and Araullo, JJ., concur.

LITO CORPUZ, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent. DECISION PERALTA, J.: This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub–paragraph (b) of the Revised Penal Code. The antecedent facts follow. Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in 1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman‘s bracelet; one (1) men‘s necklace and another men‘s bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the former that he will pay the value of the said items entrusted to him, but to no avail. Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:chanRoblesvirtualLawlibrary That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the above–named accused, after having received from one Danilo Tangcoy, one (1) men‘s diamond ring, 18k, worth P45,000.00; one (1) three–baht men‘s bracelet, 22k, worth P25,000.00; one (1) two–baht ladies' bracelet, 22k, worth P12,000.00, or in the total amount of Ninety–Eight Thousand Pesos (P98,000.00), Philippine currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the said items or to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused failed and refused to return the said items or to remit the amount of Ninety– Eight Thousand Pesos (P98,000.00), Philippine currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount. CONTRARY TO LAW. On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not

guilty. Thereafter, trial on the merits ensued. The prosecution, to prove the above–stated facts, presented the lone testimony of Danilo Tangcoy. On the other hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:chanRoblesvirtualLawlibrary Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner denied having transacted any business with private complainant. However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did not even see. After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The dispositive portion of the decision states:chanRoblesvirtualLawlibrary WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code; there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable; accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount of P98,000.00 as actual damages, and to pay the costs of suit. SO ORDERED. The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the RTC, thus:chanRoblesvirtualLawlibrary WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that accused–appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional P10,000.00, or a total of 7 years. The rest of the decision stands. SO ORDERED. Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the following grounds:chanRoblesvirtualLawlibrary A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT – 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD; 2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY 1991; C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED; D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH – 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT; 2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN EXPERIENCE; 3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE; 4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE. In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter–arguments:chanRoblesvirtualLawlibrary The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility. The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts complained of. The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit. The factual findings of the appellate court generally are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated May 2, 1991 marked as Exhibit ―A‖ and its submarkings, although the same was merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution‘s formal offer of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered as waived.5 Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned and that the date when the crime occurred was different from the one testified to by private complainant. This argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating that objections as to the matters of form and substance in the Information cannot be made for the first time on appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that the time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:chanRoblesvirtualLawlibrary x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing rule. That the time of the commission of the offense was stated as ― on or about the fifth (5th) day of July, 1991‖ is not likewise fatal to the prosecution‘s cause considering that Section 11 of the same Rule requires a statement of the precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does not render the Information ipso facto defective. Moreover, the said date is also near the due date within which accused–appellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was sufficient compliance with the rules. Accused–appellant, therefore, cannot now be allowed to claim that he was not properly apprised of the charges proferred against him.7 It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:chanRoblesvirtualLawlibrary ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow. 1. With unfaithfulness or abuse of confidence, namely:

xxxx (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property; x x x The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is received by the offender in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8 Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:chanRoblesvirtualLawlibrary PROS. MARTINEZ q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991, the question is what happens (sic) when the deadline came? a I went looking for him, sir. q For whom? a Lito Corpuz, sir. q Were you able to look (sic) for him? a I looked for him for a week, sir. q Did you know his residence? a Yes, sir. q Did you go there? a Yes, sir. q Did you find him? a No, sir. q Were you able to talk to him since 5 July 1991? a I talked to him, sir. q How many times? a Two times, sir. q What did you talk (sic) to him? a About the items I gave to (sic) him, sir.

q Referring to Exhibit A–2? a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me that he will pay these amount, sir. q Up to this time that you were here, were you able to collect from him partially or full? a No, sir. 9 No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be verbal.11 The specific word ―demand‖ need not even be used to show that it has indeed been made upon the person charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v. People:13 With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa under Art. 315 1(b), thus: When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have stated so. Otherwise, the word ―demand‖ should be interpreted in its general meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal. In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we held that the query was tantamount to a demand, thus: x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of misappropriation. The same way, however, be established by other proof, such as that introduced in the case at bar.14 In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the private complainant, to the prejudice of the latter. Anent the credibility of the prosecution‘s sole witness, which is questioned by petitioner, the same is unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The assessment by the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of evidence, the witnesses are to be weighed not numbered.17 As regards the penalty, while this Court‘s Third Division was deliberating on this case, the question of the continued validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the members of the division reached no unanimity on this question and since the issues are of first impression, they decided

to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel of the petitioner. After a thorough consideration of the arguments presented on the matter, this Court finds the following:chanRoblesvirtualLawlibrary There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose on crimes against property committed today, based on the amount of damage measured by the value of money eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would constitute judicial legislation. What the legislature‘s perceived failure in amending the penalties provided for in the said crimes cannot be remedied through this Court‘s decisions, as that would be encroaching upon the power of another branch of the government. This, however, does not render the whole situation without any remedy. It can be appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including Article 5, which reads:chanRoblesvirtualLawlibrary ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law, and in cases of excessive penalties. – Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of penal legislation. In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.18 The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation. The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief Executive the reasons why the court considers the said penalty to be non–commensurate with the act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a legislation to provide the proper penalty. In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh. Thus:chanRoblesvirtualLawlibrary

This provision is based under the legal maxim ―nullum crimen, nulla poena sige lege,‖ that is, that there can exist no punishable act except those previously and specifically provided for by penal statute. No matter how reprehensible an act is, if the law–making body does not deem it necessary to prohibit its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act. Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or modification of the legal provisions which it believes to be harsh.20 Anent the non–suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired Associate Justice Carolina C. Griño–Aquino, in their book, The Revised Penal Code,21 echoed the above–cited commentary, thus:chanRoblesvirtualLawlibrary The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. ―Whether or not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of excessive fines or cruel and unusual punishment.‖ A petition for clemency should be addressed to the Chief Executive.22 There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or at the ratio of P1.00 is equal to P100.00 . However, it would be dangerous as this would result in uncertainties, as opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change, thus, making the RPC, a self–amending law. Had the framers of the RPC intended that to be so, it should have provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the present legislature has not made any moves to amend the subject penalties in order to conform with the present times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission of those punishable acts which have increased tremendously through the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount of P100,000,000.00 plundered, the legislature lowered it to P50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti–Money Laundering Act may apply, from P1,000,000.00 to P500,000.00. It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:chanRoblesvirtualLawlibrary Art. 309. Penalties. — Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the

thing stolen exceeds the latter amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos. 3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos. 4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property stolen is over 50 pesos but does not exceed 200 pesos. 5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos. 6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos. 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall be made applicable. 8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family. In a case wherein the value of the thing stolen is P6,000.00, the above–provision states that the penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the proposal, if the value of the thing stolen is P6,000.00, the penalty is imprisonment of arresto mayorin its medium period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the said minimum period and may even apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period under the existing law. Thus, it would seem that the present penalty imposed under the law is not at all excessive. The same is also true in the crime of Estafa.23 Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be commensurate to the act committed and the value of the thing stolen or the damage caused:chanRoblesvirtualLawlibrary

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:chanRoblesvirtualLawlibrary 1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished byprision mayor minimum to prision mayor medium (6 years and 1 day to 10 years). 2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished by prision correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years).24 3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months). 4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto mayormedium to prision correccional minimum (2 months and 1 day to 2 years and 4 months). 5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1 month and 1 day to 6 months). 6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto mayor medium. x x x x. II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not changed, as follows: 1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00,punishable by prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25 2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable by prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).26 3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by arresto mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4 months). 4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6 months) An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause. The equal protection clause requires equality among equals, which is determined according to a valid classification. The test developed by jurisprudence here and yonder is that of reasonableness,27 which has four requisites:chanRoblesvirtualLawlibrary (1) The classification rests on substantial distinctions; (2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.28 According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions as P10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however, this is no longer achieved, because a person who steals P142,000.00 would receive the same penalty as someone who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no longer exist today. Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case the amount of the thing subject matter of the crime exceeds P22,000.00? It seems that the proposition poses more questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters to Congress for them to exercise their inherent power to legislate laws. Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to Congress. Thus:chanRoblesvirtualLawlibrary xxxx JUSTICE PERALTA: Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is absurd. DEAN DIOKNO: Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment. JUSTICE PERALTA: Then what will be the penalty that we are going to impose if the amount is more than Twenty– Two Thousand (P22,000.00) Pesos. DEAN DIOKNO: Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then that would ... the void should be filled by Congress. JUSTICE PERALTA: But in your presentation, you were fixing the amount at One Hundred Thousand (P100,000.00) Pesos ... DEAN DIOKNO: Well, my presen ... (interrupted) JUSTICE PERALTA: For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty–Two Thousand (P22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO: Yes, Your Honor, that is, if the court will take the route of statutory interpretation. JUSTICE PERALTA: Ah ... DEAN DIOKNO: If the Court will say that they can go beyond the literal wording of the law... JUSTICE PERALTA: But if we de ... (interrupted) DEAN DIOKNO: ....then.... JUSTICE PERALTA: Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ... DEAN DIOKNO: No, Your Honor. JUSTICE PERALTA: ... as the equivalent of one, as an incremental penalty in excess of Twenty–Two Thousand (P22,000.00) Pesos. DEAN DIOKNO: No, Your Honor. JUSTICE PERALTA: The Court cannot do that. DEAN DIOKNO: Could not be. JUSTICE PERALTA: The only remedy is to go to Congress... DEAN DIOKNO: Yes, Your Honor. JUSTICE PERALTA: ... and determine the value or the amount. DEAN DIOKNO: Yes, Your Honor. JUSTICE PERALTA: That will be equivalent to the incremental penalty of one (1) year in excess of Twenty–Two Thousand (P22,000.00) Pesos.

DEAN DIOKNO: Yes, Your Honor. JUSTICE PERALTA: The amount in excess of Twenty–Two Thousand (P22,000.00) Pesos. Thank you, Dean. DEAN DIOKNO: Thank you. x x x x29 Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the same crime in other jurisdictions. However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the latter‘s recidivist statute and not the original penalty for uttering a ―no account‖ check. Normally, the maximum punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of parole under South Dakota‘s recidivist statute because of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present controversy. With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such person the protection and safekeeping of the employer‘s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts. There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the crime and which, by adopting the proposal, may create serious implications. For example, in the crime of Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:chanRoblesvirtualLawlibrary Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:chanRoblesvirtualLawlibrary

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed two hundred pesos. 2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than two hundred pesos but does not exceed six thousand pesos. 3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than six thousand pesos but is less than twelve thousand pesos. 4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more than twelve thousand pesos but is less than twenty–two thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua. In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. The above–provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the offender. Thus, following the proposal, if the amount malversed is P200.00 (under the existing law), the amount now becomes P20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement of P20,000.00 compared to the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti–Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15 years)32under the Anti–Graft Law will now become higher. This should not be the case, because in the crime of malversation, the public official takes advantage of his public position to embezzle the fund or property of the government entrusted to him. The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused. In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the penalty of

Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the unlawful taking. Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused exceeds P1,000.00, but under the proposal, the value of the damage will now become P100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not exceed P200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not more than P200.00, if the amount involved does not exceed P200.00 or cannot be estimated. Under the proposal, P200.00 will now become P20,000.00, which simply means that the fine of P200.00 under the existing law will now become P20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature despite the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine, but changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally feasible. There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article 311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328(Special cases of malicious mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215 (Prohibited Transactions), Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country). In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or other forest products without license as an offense as grave as and equivalent to the felony of qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law is not in question. With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after due proceedings, can decide whether or not to amend or to revise the

questioned law or other laws, or even create a new legislation which will adopt to the times. Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral arguments, counsel for the Senate informed the Court that at present, fifty–six (56) bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to archaic laws that were promulgated decades ago when the political, socio–economic, and cultural settings were far different from today‘s conditions. Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative powers by judicial legislation and that in the course of such application or construction, it should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching upon the primary function of a co–equal branch of the Government; otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial legislation. Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by the Court when appropriate. Article 2206 of the Civil Code provides:chanRoblesvirtualLawlibrary Art. 2206. The amount of damages for death caused by a crime or quasi–delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition:chanRoblesvirtualLawlibrary (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death; (2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who is not an heir called to the decedent‘s inheritance by the law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court; (3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a minimum amount for awards of civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus,

although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity. In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply the law, especially when they are clear and not subject to any other interpretation than that which is plainly written. Similar to the argument of Dean Diokno, one of Justice Antonio Carpio‘s opinions is that the incremental penalty provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to the amount of P22,000.00, regardless if the actual amount involved exceeds P22,000.00. As suggested, however, from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused convicted of the crime of estafa will be meted penalties different from the proper penalty that should be imposed. Such drastic twist in the application of the law has no legal basis and directly runs counter to what the law provides. It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty was re–imposed until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a ―cruel punishment‖ within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to its non–imposition and not via the intervention of the Court. Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process, considering that the State and the concerned parties were not given the opportunity to comment on the subject matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never touched upon the constitutionality of any of the provisions of the Revised Penal Code. Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44 It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. Expressed in other terms, it has been held that to

come under the ban, the punishment must be ―flagrantly and plainly oppressive,‖ ―wholly disproportionate to the nature of the offense as to shock the moral sense of the community.‖ 45 Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time. The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to the present value of money based only on the current inflation rate. There are other factors and variables that need to be taken into consideration, researched, and deliberated upon before the said values could be accurately and properly adjusted. The effects on the society, the injured party, the accused, its socio–economic impact, and the likes must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be made to our existing law. Dejectedly, the Court is ill–equipped, has no resources, and lacks sufficient personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this conclusion, to wit:chanRoblesvirtualLawlibrary xxxx JUSTICE PERALTA: Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into consideration several factors. PROFESSOR TADIAR: Yes. JUSTICE PERALTA: Per capita income. PROFESSOR TADIAR: Per capita income. JUSTICE PERALTA: Consumer price index. PROFESSOR TADIAR: Yeah. JUSTICE PERALTA: Inflation ... PROFESSOR TADIAR: Yes. JUSTICE PERALTA: ... and so on. Is the Supreme Court equipped to determine those factors? PROFESSOR TADIAR: There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic terms.

JUSTICE PERALTA: Yeah, but ... PROFESSOR TADIAR: And I don‘t think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred (P100.00) Pesos to ... JUSTICE PERALTA: Yeah. PROFESSOR TADIAR: ... One (P1.00.00) Peso in 1930. JUSTICE PERALTA: That is legislative in nature. PROFESSOR TADIAR: That is my position that the Supreme Court ... JUSTICE PERALTA: Yeah, okay. PROFESSOR TADIAR: ... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power that belongs to the legislature. JUSTICE PERALTA: Thank you, Professor. PROFESSOR TADIAR: Thank you.46 Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into consideration ―changed conditions‖ or ―significant changes in circumstances‖ in its decisions. Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute. The issue is no different from the Court‘s adjustment of indemnity in crimes against persons, which the Court had previously adjusted in light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and justice to prevail. With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court should refrain from crossing this clear–cut divide. With regard to civil indemnity, as elucidated before, this refers to

civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions. Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additional P10,000.00, or a total of seven (7) years. In computing the penalty for this type of estafa, this Court‘s ruling in Cosme, Jr. v. People48 is highly instructive, thus:chanRoblesvirtualLawlibrary With respect to the imposable penalty, Article 315 of the Revised Penal Code provides: ART. 315 Swindling (estafa). – Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:chanRoblesvirtualLawlibrary 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the same Code requires the division of the time included in the penalty into three equal portions of time included in the penalty prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed are: Maximum – 6 years, 8 months, 21 days to 8 years Medium – 5 years, 5 months, 11 days to 6 years, 8 months, 20 days Minimum – 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49 To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión mayorminimum should be divided into three equal portions of time each of which portion shall be deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the amount involved is P98,000.00, which exceeds P22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to the penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty which may be imposed exceed 20 years. Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00 ceiling set by law, then, adding one year for each additional P10,000.00, the maximum period of 6 years, 8

months and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate penalty is 15 years. Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision correccional in its minimum and medium periods. Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and 2 months. One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court should not pre–empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on prohibited judicial legislation. WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub–paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum. Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the Republic of the Philippines, through the Department of Justice. Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of Representatives. SO ORDERED. Velasco, Jr., Leonardo–De Castro, Villarama, Jr., Perez, Mendoza, and Reyes, JJ., concur. Sereno, C.J., see concurring and dissenting opinion. Carpio, J., see dissenting opinion. Brion, J., see concurring opinion. Bersamin, J., I take no part due to prior action in the CA. Del Castillo, J., I join the dissent of J. Abad. Abad, J., see dissenting opinion. Perlas–Bernabe, J., no part. Leonen, J., I dissent on penalties, see separate opinion.

Endnotes: 1

Penned by Associate Justice Estela M. Perlas–Bernabe (now a member of the Supreme Court), with Associate Justices Rodrigo V. Cosico and Lucas P. Bersamin (now a member of the Supreme Court), concurring; rollo, pp. 31–41.

2

Rollo, p. 43.

3

Id. at 48–52.

4

Libuit v. People, 506 Phil. 591, 599 (2005).

5

Blas v. Angeles–Hutalla, 482 Phil. 485, 501 (2004).

6

Quinto v. People, 365 Phil. 259, 270 (1999).

7

Rollo, p. 37. (Citations omitted.)

8

Diaz v. People, 585 Phil. 318, 332 (2008), citing Pangilinan v. Court of Appeals, 378 Phil. 670, 675 (1999). 9

TSN, December 17, 1992, pp. 9–10. (Emphasis supplied.)

10

Tan v. People, 542 Phil. 188, 201 (2007).

11

Id., citing Lee v. People, 495 Phil. 239, 250 (2005).

12

Id.

13

555 Phil. 106 (2007).

14

Id. at 114. (Citations omitted.)

15

Cosme, Jr. v. People, 538 Phil. 52, 66 (2006), citing People v. Garillo, 446 Phil. 163, 174–175 (2003). 16

Id., citing Sullon v. People, 500 Phil. 39, 45 (2005) ; People v. Bulan, 498 Phil. 586, 598 (2005). 17

Id. at 67, citing People v. Gaspar, 376 Phil. 762, 779 (1999).

18

Emphasis supplied.

19

Third Edition, 1940.

20

Id. at 16. (Emphasis supplied)

21

1997 Edition.

22

Id. at 93, citing United States v. Valera Ang Y, 26 Phil. 598 (1914); People v. Salazar y Gabriel, 102 Phil. 1184 (1958); Tiu Ua, 51 O.G. 1863; Limaco, 99 Phil. 35 (1956), and People v. Del Rosario y Natividad, 62 Phil. 824 (1936). (Emphasis supplied.) 23

Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the means mentioned hereinbelow shall be punished by:chanRoblesvirtualLawlibrary

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. In such cases, and in connection with the accessory penalties which may be imposed under the provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal, as the case may be. 2nd. The penalty of prision correccional in its minimum and medium periods, if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos; 3rd. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and 4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be committed by any of the following means:chanRoblesvirtualLawlibrary 1. With unfaithfulness or abuse of confidence, namely:chanRoblesvirtualLawlibrary (a) By altering the substance, quantity, or quality or anything of value which the offender shall deliver by virtue of an obligation to do so, even though such obligation be based on an immoral or illegal consideration. (b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond; or by denying having received such money, goods, or other property. (c) By taking undue advantage of the signature of the offended party in blank, and by writing any document above such signature in blank, to the prejudice of the offended party or of any third person. 2. By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud:chanRoblesvirtualLawlibrary (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits. (b) By altering the quality, fineness or weight of anything pertaining to his art or business. (c) By pretending to have bribed any Government employee, without prejudice to the action for calumny which the offended party may deem proper to bring against the offender. In this case, the offender shall be punished by the maximum period of the penalty. (d) [By post–dating a check, or issuing a check in payment of an obligation when the offender therein were not sufficient to cover the amount of the check. The failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and/or the payee or holder that said check has been dishonored for lack of

insufficiency of funds shall be prima facie evidence of deceit constituting false pretense or fraudulent act. (As amended by R.A. 4885, approved June 17, 1967.)] (e) By obtaining any food, refreshment or accommodation at a hotel, inn, restaurant, boarding house, lodging house, or apartment house and the like without paying therefor, with intent to defraud the proprietor or manager thereof, or by obtaining credit at hotel, inn, restaurant, boarding house, lodging house, or apartment house by the use of any false pretense, or by abandoning or surreptitiously removing any part of his baggage from a hotel, inn, restaurant, boarding house, lodging house or apartment house after obtaining credit, food, refreshment or accommodation therein without paying for his food, refreshment or accommodation. 3. Through any of the following fraudulent means: (a) By inducing another, by means of deceit, to sign any document. (b) By resorting to some fraudulent practice to insure success in a gambling game. (c) By removing, concealing or destroying, in whole or in part, any court record, office files, document or any other papers. 24

May be entitled to Probation.

25

May be entitled to Probation if the maximum penalty imposed is 6 years.

26

May be entitled to Probation.

27

Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385, 414. 28

People v. Cayat, 68 Phil. 12, 18 (1939).

29

TSN, Oral Arguments, February 25, 2014, pp. 192–195.

30

463 U.S. 277 (1983)

31

Section 3. Corrupt practices of public officers. – In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:chanRoblesvirtualLawlibrary (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and regulations duly promulgated by competent authority or an offense in connection with the official duties of the latter, or allowing himself to be persuaded, induced, or influenced to commit such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in

consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act requiring the approval of a board, panel or group of which he is a member, and which exercises discretion in such approval, even if he votes against the same or does not participate in the action of the board, committee, panel or group. Interest for personal gain shall be presumed against those public officers responsible for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel or group to which they belong. (j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential character, acquired by his office or by him on account of his official position to unauthorized persons, or releasing such information in advance of its authorized release date. The person giving the gift, present, share, percentage or benefit referred to in subparagraphs (b) and (c); or offering or giving to the public officer the employment mentioned in subparagraph (d); or urging the divulging or untimely release of the confidential information referred to in subparagraph (k) of this section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or temporarily disqualified in the discretion of the Court, from transacting business in any form with the Government. 32

R.A. No. 3019, Sec. 9.

33

Art. 26. When afflictive, correctional, or light penalty. — A fine, whether imposed as a single of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it less than 200 pesos. 34

Revised Forestry Code, as amended by E.O. No. 277, Series of 1987.

35

Taopa v. People, 592 Phil. 341, 345 (2005).

36

Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic erruption, or any other calamity, vehicular accident or civil disturbance. 37

TSN, Oral Arguments, February 25, 2014, p. 167.

38

People v. Quijada, 328 Phil. 505, 548 (1996).

39

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. 40

AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES. 41

AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES.

42

Section 19.

1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. x x x. 43

Gutierrez v. Department of Budget and Management, G.R. No. 153266, 159007, 159029, 170084, 172713, 173119, 176477, 177990, A.M. No. 06–4–02–SB, March 18, 2010, 616 SCRA 1, 25. 44

People v. De la Cruz, 92 Phil. 906, 908 (1953); People v. Tongko, 353 Phil. 37, 43 (1998).

45

People v. Estoista, 93 Phil. 647, 655 (1953); People v. Dionisio, No. L–15513, March 27, 1968, 22 SCRA 1299, 1301–1302. 46

TSN, Oral Arguments, February 25, 2014, pp. 183–185.

47

No. L–18793, October 11, 1968, 25 SCRA 468.

48

Supra note 15.

49

Id. at 71–72.

50

ART. 65. Rule in Cases in Which the Penalty is Not Composed of Three Periods. – In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions the time included in the penalty prescribed, and forming one period of each of the three portions. 51

People v. Temporada, G.R. No. 173473, December 17, 2008, 574 SCRA 258, 284.

CONCURRING AND DISSENTING OPINION

SERENO, C.J.:

The measure of a just society depends not only on how it apprehends and punishes the guilty. It also lies in the dignity and fairness it collectively accords convicted persons who, irrevocably, are still members of that society. The duty of the Court in this case is not only to dispense justice, but to actively prevent injustice wrought by inaction on the question of the continued justness of the penalties under Article 315 of the Revised Penal Code. I concur with the ponencia in affirming the conviction of petitioner but vote to apply the penalty for estafaadjusted to the present value of the thing subject of the offense. Considering that the penalty has remained untouched for eighty–three years, the Court cannot adhere to its literal imposition without first revisiting the assigned values on which such penalty was based. The Legislature of 1930 pegged the penalties at the prevailing value of money at the time of the enactment of the Revised Penal Code. Apart from its representation as a basket of goods or as a means of exchange, money has no independent value by itself, and that is how the law has always seen it. Even this outlook must then necessarily affect our views regarding the liberty of persons and how money affects it. My colleagues have presented differing approaches supported by equally keen arguments. However, were we to take the convenient route of mechanical application, we would be perpetuating an erroneous result from lamentable inaction. Would this Court abdicate its duty at the risk of endangering the right to liberty of the accused? In the past, the Court has never shirked from its role of interpreting the law, always with a careful consideration of its minimum burden: to prevent a result that is manifestly unjust. That the fundamental right to life and liberty is made to depend solely on Congress or the mere passage of time with respect to an omission is a result the Court should not be prepared to accept. The legislative intent behind provisions of the Revised Penal Code is to create prison terms dependent upon the value of the property subject of the crime. A prison term is virtually monetized, while an individual‘s life and well–being hang in the balance. It is incumbent upon the Court to preserve the intent of Congress while crucially ensuring that the individual‘s liberty is not impinged upon any longer than necessary. This is distinct from the situation contemplated

under Article 5, par. 2 of the Penal Code,1 in which the Court would need to delve into the wisdom of the law, i.e. the appropriateness of the penalty taking into account the degree of malice and the injury caused by the offense. Thus, the crux of the present case is simple judicial application of the doctrines that in cases of doubt: 1) the law must be construed in favor of the accused, 2) it is presumed that the lawmaking body intended right and justice to prevail. This duty of judicial construction is understood to permeate every corner where the Court exercises its adjudicative function, specifically in how it expounds on criminal rules. To assume that the Court would be changing the penalty imprudently leads to a misplaced apprehension that it dabbles in judicial legislation, when it is merely exercising its constitutional role of interpretation. Adjusting the amounts to the present value of money recognizes that money is simply an assigned representation, similar to the Court’s ruling in People v. Pantoja. Ruling in accordance with ―felt necessities of the time‖2 or in recognition of considerably changed circumstances is not a novel judicial approach. In Central Bank Employees v. BSP, the Court posed this question: Can a provision of law, initially valid, become subsequently unconstitutional on the ground that its continued operation would violate the equal protection of the law? The Court thus considered the legal effect of the passage of time, stating:chanRoblesvirtualLawlibrary Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions. x x x. In the Philippine setting, this Court declared the continued enforcement of a valid law as unconstitutional as a ―consequence of significant changes in circumstances.‖ In Rutter v. Esteban, We upheld the constitutionality of the moratorium law – despite its enactment and operation being a valid exercise by the State of its police power – but also ruled that the continued enforcement of the otherwise valid law would be unreasonable and oppressive. The Court noted the subsequent changes in the country‘s business, industry and agriculture. Thus, the law was set aside because its continued operation would be grossly discriminatory and lead to the oppression of the creditors. ‖3 It is axiomatic that laws, customs, public policy and practice evolve with the passage of time; so too, does monetary valuation. Money has no value in and of itself except that which we assign, making it susceptible to construction and interpretation. Money is not real in the sense that it is capable of being indexed. Viewed in this way, human lives and liberty cannot be made dependent on a mere index of almost a century ago. I submit that in the present case, the Court is not even delving into questions of validity of the substance of the statute. This is no different from the Court‘s adjustment of indemnity in crimes against persons or the determination of valuation in expropriation cases. We have continually checked penalties in criminal cases, adjusted the amounts of damages and indemnities according to the appropriateness thereof in light of current times. We have done so with eyes open, knowing that the adjustments reflect a realization that the value of the peso has changed over time. If the purchasing power of the peso was accepted as a ―judicially manageable

standard‖ in those cases, there is no reason for the Court not to apply it in favor of the accused herein, especially because it is mandated to do so. In People v. Pantoja, concerning compensatory damages for death, the Court explained this adjustment in uncomplicated terms:chanRoblesvirtualLawlibrary In 1948, the purchasing power of the Philippine peso was one–third of its pre–war purchasing power. In 1950, when the New Civil Code took effect, the minimum amount of compensatory damages for death caused by a crime or quasi–delict was fixed in Article 2206 of the Code at P3,000. The article repealed by implication Commonwealth Act No. 284. Hence, from the time the New Civil Code took effect, the Courts could properly have awarded P9,000 as compensatory damages for death caused by a crime or quasi– delict. It is common knowledge that from 1948 to the present (1968), due to economic circumstances beyond governmental control, the purchasing power of the Philippine peso has declined further such that the rate of exchange now in the free market is U.S. $1.00 to almost 4.00 Philippine pesos. This means that the present purchasing power of the Philippine peso is one–fourth of its pre–war purchasing power. We are, therefore, of the considered opinion that the amount of award of compensatory damages for death caused by a crime or quasi–delict should now be P12,000.‖4 I agree with the view of Justice Roberto A. Abad that while Article 2206 of the Civil Code sets only a minimum amount, the Court since then has regularly increased amounts awarded by the lower courts. Tellingly, these decisions and resolutions are not mere suggestions or guidelines for the trial courts‘ exercise of discretion, but are actual findings of error.5 Pantoja’s recognition of inflation as a reality – among other instances when the Court has acknowledged ―changed conditions‖ – only shows that criminal rules, especially the implementation of penalties, must also evolve. As societies develop, become more enlightened, new truths are disclosed. The Court as an institution cannot ignore these truths to the detriment of basic rights. The reality is that property–related crimes are affected by external economic forces,6 rendering the penalties vulnerable to these forces. It is a basic constitutional doctrine that the slightest doubt must be resolved in favor of the accused. The constitutional mandate is that the Court must construe criminal rules in favor of the accused. In fact, the slightest doubt must be resolved in favour of the accused.7 This directive is moored on the equally vital doctrine of presumption of innocence.8 These principles call for the adoption of an interpretation which is more lenient.9Time and again, courts harken back to the pro reo rule when observing leniency, explaining: ―The scales of justice must hang equal and, in fact should be tipped in favor of the accused because of the constitutional presumption of innocence.‖ 10 This rule underpins the prospectivity of our penal laws (laws shall have no retroactive application, unless the contrary is provided) and its exception (laws have prospective application, unless they are favorable to the accused).11 The pro reo rule has been applied in the imposition of penalties, specifically the death penalty12 and more recently, the proper construction and application of the Indeterminate Sentence Law. The rationale behind the pro reo rule and other rules that favor the accused is anchored on the

rehabilitative philosophy of our penal system. In People v. Ducosin, the Court explained that it is ―necessary to consider the criminal, first, as an individual and, second, as a member of society. This opens up an almost limitless field of investigation and study which it is the duty of the court to explore in each case as far as is humanly possible, with the end in view that penalties shall not be standardized but fitted as far as is possible to the individual, with due regard to the imperative necessity of protecting the social order.‖13 Thus, with the same legislative intent to shorten a defendant‘s term of imprisonment embodied in the Indeterminate Sentence Law, I believe the adjustment of penalties considered in the present case forwards the State‘s concern ―not only in the imperative necessity of protecting the social organization against the criminal acts of destructive individuals but also in redeeming the individual for economic usefulness and other social ends.‖14 This approach would be more in accord with the pro reo rule and the overarching paradigm of our penal system. In past instances, the Court has not only laid down guidelines but made actual policy determinations for the imposition of penalties. Section 1 of Batas Pambansa Blg. 22 or the Bouncing Checks Law imposes the penalty of imprisonment of thirty days to one year OR a fine double the amount of the check, or both, at the court‘s discretion. In Vaca v. Court of Appeals, the Supreme Court deleted the penalty of imprisonment meted out by the trial court and imposed only the penalty of fine, reasoning:chanRoblesvirtualLawlibrary Petitioners are first–time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by Section 1, par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. In this case, we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners.15 The Court did not expressly make a finding that the trial court erred in exercising its discretion, but stated that correcting the penalty would best serve the ends of criminal justice. This policy was applied in Lim v. People,16which imposed only the fine under B.P. Blg. 22. The Court then issued Administrative Circular No. 12–2000, which states:chanRoblesvirtualLawlibrary All courts and judges concerned should henceforth take note of the foregoing policy of the Supreme Court on the matter of the imposition of penalties for violations of B.P. Blg. 22. The Court Administrator shall cause the immediate dissemination of this Administrative Circular to all courts and judges concerned. This Administrative Circular, referred to and approved by the Supreme Court en banc, shall take effect upon its issuance.17

Administrative Circular No. 13–2001 further clarifies that: ―The clear tenor and intention of Administrative Circular No. 12–P2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule of preference in the application of the penalties provided for in B.P. Blg. 22 xxx such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine alone rests solely upon the Judge.‖18 Hence, the imposition of a policy on penalties is not far removed from the judicial construction exercised in the present case. Establishing a policy or a rule of preference towards the unnecessary deprivation of personal liberty and economic usefulness has always been within the scope of judicial power. Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and justice to prevail. Article 10 of the Civil Code states: ―In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.‖ The Code Commission found it necessary to include this provision to ―strengthen the determination of the Court to avoid an injustice which may apparently be authorized in some way of interpreting the law.‖19 In Salvacion v. Central Bank, the Court warned: ―In our predisposition to discover the ―original intent‖ of a statute, courts become the unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions are bundles of compromises thrown our way by their framers. Unless we exercise vigilance, the statute may already be out of tune and irrelevant to our day.‖ Salvacion involved the rape of a minor by a foreign tourist and the execution of the final judgment in the case for damages on the tourist‘s dollar deposit accounts. The Court refused to apply Section 113 of Central Bank Circular No. 960 which exempts foreign currency deposits from attachment, garnishment or any other order or process of any court, because ―the law failed to anticipate the iniquitous effects producing outright injustice and inequality such as the case before us.‖20 Applying Article 10, the Court held: ―In fine, the application of the law depends on the extent of its justice. x x x Simply stated, when the statute is silent or ambiguous, this is one of those fundamental solutions that would respond to the vehement urge of conscience.‖21 The majority view states that to embark on this formulation is dangerous, uncertain, or too taxing. Yet even counsel for the House of Representatives admits that inflation can be taken into consideration, and that the values to be used in the conversion are easily available. There is sufficient basis – through the efforts of the authorized statistical organizations22 and Bangko Sentral ng Pilipinas, who collect data year to year – that viably establish the purchasing power of the peso. More importantly, fear of clogged dockets and the inconvenience of a perceived distortion are operational concerns that are not sufficient justification to re–tilt the scales to the prejudice of the accused. It does not impact on the fact that by adjusting the questioned amounts to the present value of money, the Court would merely be following the mandate of Article 10 and

fulfilling its proper constitutional role. I therefore vote to affirm the conviction of petitioner, but to impose the penalty adjusted to present value, as proposed by Justice Abad.

Endnotes: 1

―In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.‖ 2

From the first of 12 Lowell Lectures delivered by Oliver Wendell Holmes on November 23, 1880. 3

487 Phil. 531, 564 (2004).

4

134 Phil. 453 (1968).

5

Decision, p. 12.

6

Dean Sedfrey M. Candelaria, Comment, 30 September 2013.

7

People v. Milan, 370 Phil. 493, 506 (1999).

8

1987 Constitution Sec. 14(2) states, ―In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.‖ 9

Mediatrix Carungcong as Administratrix v. People of the Philippines, et al., G.R. No. 181409, 11 February 2010, 612 SCRA 272. 10

People v. Opida, 226 Phil. 218, 226 (1986).

11

Boado, Leonor, Notes and Cases on the Revised Penal Code, p. 7, (2008).

12

For a crime committed in 1987, the Court refused to reimpose the death penalty under Republic Act 7659. (People v. Bracamonte 327 Phil. 160, (1996). 13

59 Phil. 109 (1933).

14

Id. at 117.

15

359 Phil. 187 (1998).

16

394 Phil. 844 (2000).

17

Issued on 21 November 2000.

18

The issuance of this Administrative Circular was authorized by the Court En Banc in A.M. No. 00–11–01–SC at its session on 13 February 2001. 19

Report of the Code Commission, p. 78.

20

343 Phil. 539 (1997).

21

Id., citing Padilla v. Padilla, 74 Phil. 377 (1943).

22

Pursuant to Republic Act 10625, the National Statistics Office is (NSO) now incorporated into the Philippine Statistical Authority, along with the National Statistical Coordination Board and other agencies.

DISSENTING OPINION

CARPIO, J.:

I vote to grant the petition in part by declaring unconstitutional that portion of the first paragraph of Article 315 of Act No. 3815, as amended (Code), mandating the imposition of maximum penalty based on the amount of the fraud exceeding P22,000. I do so on the ground that imposing the maximum period of the penalty prescribed in Article 3151 of the Code in such a manner, unadjusted to inflation, amounts to cruel punishment within the purview of Section 19(1), Article III of the Constitution.2 Cruel Punishment Clause Bans Odious and Disproportionate Punishments The Cruel Punishment Clause first appeared in the English Bill of Rights of 16893 which mandated that ―excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖ The prohibition restrained the King from punishing convicts in ways inconsistent with human dignity.4Over a century later, the Americans adopted the Clause as the Eighth Amendment5 to their Bill of Rights of 1791. When the United States acquired these Islands in 1898 under the Treaty of Paris (following the defeat of Spain in the Spanish–American War), the Eighth Amendment was extended to this jurisdiction, first under President McKinley‘s Instructions to the Second Philippine Commission and later under the Organic Acts passed by the US Congress.6 The Clause was retained as part of the Bill of Rights of succeeding Philippine Constitutions during the Commonwealth and post–independence eras. Early on, the question arose whether the Clause serves only to limit the legislature‘s power to inflict certain formsof punishment (e.g., torture) or whether it also prohibits the legislature from imposing punishments whose extent is excessive or disproportionate to the crime.7 It did not take long for the US Supreme Court to settle the debate. In reviewing a 1902 ruling of this Court sentencing an accused to 15 years of cadena temporal with fine and accessory penalties8 for

falsification of a public document, the US Supreme Court set aside the judgment, holding that the punishment was ―cruel in its excess of imprisonment and that which accompanies and follows the imprisonment.‖9 In refusing to give a narrow interpretation to the Clause, that court observed that the ―meaning and vitality of the Constitution have developed against narrow and restrictive construction.‖10Proportionality is now a staple analytical tool in the US jurisdiction to test claims of cruel punishment under penal statutes imposing the death penalty.11 Our own jurisprudence subscribe to such construction of the Cruel Punishment Clause. During the US colonial occupation, this Court was expectedly bound by the US Supreme Court‘s interpretation of the Eighth Amendment as ―the exact language of the Constitution of the United States [in the Eighth Amendment] is used in the Philippine Bill [of 1902]‖12 and later, in the Autonomy Act of 1916. Hence, in its rulings interpreting the Clause, the Court read the provision as a limitation on the power of the colonial legislature not only on the form but also on the extent of punishments it can enact.13 During the Commonwealth period, the text of the Eighth Amendment was substantially adopted as Section 1(19), Article III of the 1935 Constitution.14 Owing in no small measure to the dearth of discussion on the meaning of the Clause during the deliberations of the 1934 Constitutional Convention, the Court saw no reason to deviate from its colonial–era jurisprudence.15 The 1973 Constitution, replacing the 1935 Charter, retained the Clause as part of the Bill of Rights.16 The Court, however, had no occasion to pass upon any matter calling for the interpretation of the Clause until after the new Constitution, which carried over the Clause as Section 19(1) of Article III, took effect in February 1987. In its post–1987 jurisprudence, the Court continued to rely on its rulings rendered under the 1935 Constitution.17 Clearly then, the proposition that the Cruel Punishment Clause limits the legislature‘s power to inflict certain forms of punishments only, allowing it to impose penalties disproportionate to the offense committed, runs counter to the grain of decades–old jurisprudence here and abroad. Such interpretation, which rests on a strict originalist reading of the Eighth Amendment of the US Constitution,18 never gained traction in the United States19 and it makes no sense to insist that such view applies in this jurisdiction. In the first place, the US Constitution, unlike our present Constitution, has essentially remained unchanged since its adoption in 1787 (save for the inclusion of the Bill of Rights in 1791 and other later piecemeal amendments). The 1987 Constitution is already the third in the 20th century, following the 1935 Commonwealth Constitution and the 1973 Martial Law Constitution.20 When the present Constitution was ratified in 1987, nearly two millennia after the US adopted the Eighth Amendment, the Filipino people who voted for its approval could not have intended Section 19(1) of Article III to embody the US originalists‘ interpretation of the Eighth Amendment. It is more consistent with reason and common sense to say that the Filipino people understood the Clause to embrace ―cruel, degrading and inhuman‖ punishments in its 20th century, Filipino conception, grounded on their collective experiences and sense of humanity. Indeed, the Filipino people who ratified the present Constitution could not have intended to limit the reach of the Cruel Punishment Clause to cover torture and other forms of odious punishments only because nearly four decades before the present Constitution took effect, the Philippine government joined the community of nations in approving the Universal Declaration of Human Rights (UDHR) in 1948 which bans ―torture or x x x cruel, inhuman or degrading treatment or punishment.‖21 In 1986, shortly before the Constitution took effect, the Philippines

ratified the International Covenant for Civil and Political Rights (ICCPR) containing an identically worded prohibition.22 These international norms formed part of Philippine law as generally accepted principles of international law23 and binding treaty obligation, respectively.24 Standards to Determine Impermissible Disproportionality This Court has had occasion to devise standards of disproportionality to set the threshold for the breach of the Cruel Punishment Clause. Punishments whose extent ―shock public sentiment and violate the judgment of reasonable people‖25 or ―[are] flagrantly and plainly oppressive‖26 are considered violative of the Clause.27Other than the cursory mention of these standards, however, we have made no attempt to explore their parameters to turn them into workable judicial tools to adjudicate claims of cruel punishment. Even if we did, it would have been well–nigh impossible to draw the line separating ―cruel‖ from legitimate punishments simply because these standards are overly broad and highly subjective.28 As a result, they ratchet the bar for the breach of the Clause to unreasonably high levels. Unsurprisingly, no litigant has successfully mounted a challenge against statutes for violation of the Clause.29 Impermissible disproportionality is better gauged by testing punishments against the following alternative parameters: (1) whether more serious crimes are equally or less severely punished; or (2) whether the punishment reasonably advances the state interest behind the penalty.30 These parameters strike the proper balance of providing practical tools of adjudication to weigh claims of cruel punishment while at the same time affording Congress discretionary leeway to craft penal statutes addressing societal evils. Value–based, Maximum Penalty Calibration Under Article 315 Disproportionate to the Crime of Estafa More Serious Crimes Equally Punished as Estafa Article 315 of the Code calibrates the maximum penalty for estafa on an escalated basis once a threshold amount of fraud is crossed (P22,000). The penalty escalates on a ratio of one year imprisonment for every P10,000 fraud, with 20 years as ceiling.31 Accordingly, for a fraud of P98,000, the trial court sentenced petitioner to a maximum term of 15 years. This punishment, however, is within the range of the penalty imposable on petitioner under the Code had he ―killed the [private complainant] jeweler in an angry confrontation.‖32 The same penalty would also be within the range prescribed by the Code had petitioner kidnapped the private complainant and kept him detained for three days.33 By any objective standard of comparison, crimes resulting in the deprivation of life or liberty are unquestionably more serious than crimes resulting in the deprivation of property.34 By imposing a level of punishment for estafa equal to more serious crimes such as homicide and kidnapping, Article 315‘s system of calibrating the maximum penalty based on the amount of fraud is plainly arbitrary and disproportionate to the severity of the crime punished. Maximum Penalty for Estafa Unrelated to its Purpose The felonies defined and penalized under Title 10, Book Two of the Code, as amended, as crimes against property, including estafa under Article 315, are legislative measures safeguarding the right to property of private individuals and the state.35 The penalties of

imprisonment and/or fine attached to each crime are meant to deter and incapacitate criminals from infringing such right. The Cruel Punishment Clause ensures that the state interest is advanced without sacrificing proportionality between the crime and punishment. In short, the Clause acts as constitutional brake whenever Congress enacts punishment whose severity is gratuitous, wholly unconnected to the purpose of the law. Of the more than two dozen crimes originally defined by Congress in Title 10, Book Two of the Code,36 only two crimes, estafa and theft, consider the amount of the property involved to calibrate the maximum range of the penalty. All the rest either impose penalties irrespective of the amount of the property involved37 or provide a threshold amount based on the property involved for the imposition of a straight (as opposed to calibrated) penalty.38 Crucially, the calibration does not take into account the real value of the peso. Admittedly, Congress has ample discretion to fix penalties in the Code according to its best light. At the time the Code took effect in 1932, when US$1.00 was equivalent to P1.00, the system of calibrated penalty under Article 315 based on the amount appropriated arguably stayed clear of the Cruel Punishment Clause. After 82 years, however, when the real value of the peso has depreciated substantially with the current rate of US$1.00 to P40.00, an estafa of P142,000 in 1932, meriting a 20–year penalty, should today require P5.6 million to merit a 20– year penalty. Put differently, P142,000 in 1932 is worth only P3,55039 today, which should merit only a maximum penalty of six months and one day to two years and four months imprisonment.40 The enormous disparity in the values of fraud between these points in time (exceeding 100%) and the imposition of the same level of maximum punishment in both instances remove any semblance of reasonability in the manner by which the punishment is derived and its connection to the purpose of the law. The arbitrary differential treatment of estafa (and theft) crosses the line separating the exercise of valid legislative discretion and the Cruel Punishment Clause. This conclusion stands notwithstanding our holding in People v. Tongko41 and Lim v. People42 that the system of calculating the maximum penalty under Article 315 does not offend the Cruel Punishment Clause. Those cases involved paragraph 2(d) of Article 315, as amended by Presidential Decree No. 818 (PD 818),43 penalizing as estafa the issuance of unfunded or underfunded checks (not paragraph 1(b), the provision violated by petitioner). Our conclusion in those cases was grounded on the fact that criminalizing the issuance of bouncing checks reasonably advances the state interest behind the law, that is, ensuring the stability of commercial and banking transactions.44 Such state interest is not implicated here. The clause in Article 315 petitioner violated, penalizing the failure to return property delivered in trust for disposition, secures the entirely different government interest of protecting private property. To consider Tongko and Lim as binding precedents, precluding a different conclusion, is to expand their ratio decidendi beyond the facts presented in those cases. Penalty Imposable Under Article 315 The breach of the Cruel Punishment Clause by Article 315‘s system of calculating the maximum penalty for estafa in excess of P22,000 means that only the minimum term of imprisonment provided under Article 315 for such crime can be imposed on petitioner, namely, prision correccional in its maximum period. This level of penalty is covered by the Indeterminate Sentence Law45 which renders the next lower penalty, namely, prision correccional in its medium period, as the minimum of the sentence.46 The entirety of the sentence will be anywhere within the range of these maximum and minimum penalties. Hence, petitioner‘s term of imprisonment should be modified to three (3) years, one (1) month and

eleven (11) days of prision correccional, as minimum, to four (4) years, nine (9) months and eleven (11) days of prision correccional, as maximum. The same range of penalty applies to all other persons found guilty of violating Article 315. Thus, whether an estafa involves money or property worth P22,000 or P1 million, the minimum term of imprisonment under Article 315 – prision correccional in its maximum period – will be imposed on the accused. The penalty for the felony of syndicated estafa under Presidential Decree No. 1689 (PD 1689) is, however, an altogether different matter. PD 1689 amended Article 315 of the Code by adding a new mode of committing estafa47 and imposing the penalty of ―life imprisonment to death‖ or ―reclusion temporal to reclusion perpetua if the amount of the fraud exceeds P100,000.‖ Unlike Article 315, PD 1689 does not calibrate the duration of the maximum range of imprisonment on a fixed time–to–peso ratio (1 year for every P10,000 in excess of P22,000), but rather provides a straight maximum penalty of death or reclusion perpetua. This places PD 1689 outside of the ambit of the proscription of the Cruel Punishment Clause on the imposition of prison terms calibrated based on the value of the money or property swindled, unadjusted to inflation. Effect of Ruling on Convicts Serving Time under Article 315 This opinion relieves petitioner of the harsh effect of the penalty for estafa under Article 315 by lowering the entire range of imprisonment and monetary liability of petitioner or imposing only the minimum range of imprisonment, respectively. It is akin to our 1956 ruling in People v. Hernandez48 decriminalizing rebellion complexed with ordinary crimes to the benefit not only of the accused in that case but also of those already serving time for rebellion complexed with other crimes.49Hernandez and today‘s ruling amount to laws favoring convicts, which, under Article 22 of the Code, have retroactive effect.50 Convicts benefitting from such ruling and falling within the terms of Article 22 may invoke it in their favor and, if proper, avail of remedies to secure their release from detention. Conclusion not Precluded by Article 5 of the Code Testing Article 315 against the Cruel Punishment Clause under the standards espoused in this opinion does not make a dead letter law of the second paragraph of Article 5 of the Code. Such provision, mandating courts to recommend executive clemency – when a strict enforcement of the provisions of th[e] Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense. (Emphasis supplied) operates within the realm of criminal law, requiring fact–based judicial evaluation on the degree of malice of the accused and the injury sustained by the victim or his heirs. The Cruel Punishment Clause, on the other hand, is the constitutional yardstick against which penal statutes are measured using relevant standards unrelated to questions of criminal malice and injury. Far from overlapping, the conclusions yielded by analyses under these two rules are distinct – a penal statute may well avoid the taint of unconstitutionality under the Clause but, applying such statute under peculiar set of facts, may justify a recommendation for the grant of clemency.51

Legislative Review of Article 315 and Related Provisions Overdue The constitutional infirmity not only of Article 315 but also of related provisions in the Code calls for a comprehensive review by Congress of such 82–year old legislation.52 Pending such congressional review, this Court should decline to enforce the incremental penalty in Article 315 because such continued enforcement of the incremental penalty violates the Cruel Punishment Clause. Accordingly, I vote to (1) GRANT the petition in part by modifying the sentence imposed on petitioner Lito Corpuz to three (3) years, one (1) month and eleven (11) days of prision correccional, as minimum, to four (4) years, nine (9) months and eleven (11) days of prision correccional, as maximum; and (2) DECLARE UNCONSTITUTIONAL that portion of the first paragraph of Article 315 of Act No. 3815, as amended, mandating the imposition of maximum penalty based on the amount of the fraud exceeding P22,000, for being violative of Section 19(1), Article III of the 1987 Constitution.

Endnotes: 1

―Swindling (estafa) – Any person who shall defraud another by any of the means mentioned herein below shall be punished by: Ist. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years. x x x.‖ (Emphasis supplied) 2 ―Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. x x x.‖ 3

Enacted on 16 December 1689.

4

Thus, it is thought that ―the principle it represents can be traced back to the Magna Carta.‖ Trop v. Dulles, 356 U.S. 86, 100 (1958). 5

―Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.‖ 6

The Philippine Bill of 1902 and the Autonomy Act of 1916.

7

For an exhaustive historical treatment of the subject, see Furman v. Georgia, 408 U.S. 238, 258–269 (1972) (Brennan, J., concurring). 8

Deprivation of civil rights during service of sentence and post–service perpetual deprivation of political rights. 9

Weems v. US, 217 U.S. 349, 377 (1910).

10

Id. at 373.

11

In the sense that aggravating circumstances (qualifying a class of criminals for the death penalty) and mitigating circumstances (tempering sentences) must be legislated and carefully weighed. See Furman v. Georgia, 408 U.S. 238 (1972) (Douglas, J., concurring) and progeny, e.g., Gregg v. Georgia, 428 U.S. 153 (1976) (plurality opinion); Buchanan v. Angelone, 522 U.S. 269 (1998). 12

US v. Borromeo, 23 Phil. 279, 286 (1923). In Weems, the US Supreme Court was more direct to the point: ―[T]he provision of the Philippine bill of rights, prohibiting the infliction of cruel and unusual punishment, was taken from the Constitution of the United States and must have the same meaning.‖ Weems v. US, supra note 9 at 367. 13

US v. Borromeo, 23 Phil. 279 (1923); People v. Constantino, G.R. No. L–19290, 11 January 1923 (Unrep.); US v. Pico, 18 Phil. 386 (1911). Pico and Constantino dwelt on the question of extent (severity) of the punishment as criterion for breaching the Clause. After reviewing extant relevant authorities we observed in Borromeo: In view of these authorities, and the fact that the legislature invariably endeavors to apportion a penalty commensurate with the offense, and that course, in the exercise of such discretion as is conferred upon them in fixing penalties within minimum and maximum degrees, adhere to the same rule, it seems to us that to assert, when the question assumes the dignity of a constitutional inquiry, that courts should not concern themselves with the relative magnitude of the crime and the penalty, is wrong, both in logic and in fact. A contrary view leads to the astounding result that it is impossible to impose a cruel and unusual punishment so long as none of the old and discarded modes of punishment are used; and that there is no restriction upon the power of the legislative department, for example, to prescribe the death penalty by hanging for misdemeanor, and that the courts would be compelled to impose the penalty. Yet such a punishment for such crime would be considered extremely cruel and unusual by all right–minded people. (US v. Borromeo, supra at 289 [emphasis supplied]). 14 ―Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted.‖ 15

People v. De la Cruz, 92 Phil. 906, 908 (1953); People v. Estoista, 93 Phil. 647 (1953); People v. Dionisio, 131 Phil. 409 (1968). In his commentary on the 1935 Constitution, Dean Sinco considered the Clause as ―fobid[ding] punishments greatly disproportionate to the offense.‖ V. SINCO, PHILIPPINE POLITICAL LAW 674 (1954). 16

Under Section 21, Article III (―Excessive fines shall not be imposed, nor cruel or unusual punishment inflicted.‖). 17

Baylosis v. Chavez, 279 Phil. 448 (1991); People v. Tongko, 353 Phil. 37 (1998); and Lim v. People, 438 Phil. 744 (2002) all citing People v. Estoista, 93 Phil. 647 (1953) and People v. De la Cruz, 92 Phil. 906, 908 (1953) (for Lim and Tongko). Although these cases emphasize the ―form only‖ school of thought, all relied on pre–1973 jurisprudence recognizing disproportionality as ground for breaching the Clause. 18

Adherents of this school of thought insist that the Eighth Amendment forbids only ―those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted‖ in 1791. Atkins v. Virginia, 536 U.S. 304, 339 (2002) (Scalia, J., dissenting). See also D. STRAUSS, THE LIVING CONSTITUTION (2010). 19

Consistent with its interpretative approach in Weems, the US Supreme Court considers the Eighth Amendment to ―draw its meaning from the evolving standards of decency that mark the progress of a maturing society.‖ Trop v. Dulles, supra note 4 at 101.

20

At the close of the 19th century, the Philippine revolutionary government adopted the Malolos Constitution in 1899 which, however, was short–lived and largely symbolic. 21

Article 5 of the UDHR, approved by the UN General Assembly on 10 December 1948.

22

Article 7 of the ICCPR, ratified by the Philippines on 23 October 1986.

23

Although the UDHR is a non–binding instrument, this Court treated the UDHR as embodying generally accepted principles of international law, hence, forming part of the law of the land under the 1935 Constitution‘s Incorporation Clause (Section 3, Article II of the 1935 Constitution, reiterated in Section 3, Article II of the 1973 Constitution). Mejoff v. Director of Prisons, 90 Phil. 70 (1951); Borovsky v. Commissioner of Immigration, 90 Phil. 107 (1951); Chirskoff v. Commissioner of Immigration, 90 Phil. 256 (1951). The provision was retained in the 1987 Constitution (Section 2, Article II). 24

These norms are buttressed by the Convention Against Torture and other Cruel, Inhuman, Degrading Treatment or Punishment which entered into force on 26 June 1987 and to which the Philippines acceded on 18 June 1986. The Convention binds states parties to ―take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction‖ (Article 2) and ―prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture‖ as defined in the Convention (Article 16). 25

Supra note 12 at 286. A variation sets the standard at disproportionality which ―shock[s] the moral sense of all reasonable men as to what is right and proper under the circumstances.‖ (People v. De la Cruz, 92 Phil. 906, 908 [1953], citing Am. Jur. 178) or which ―shock[s] the moral sense of the community‖ (People v. Estoista, 93 Phil. 647, 655 [1953] [Res.] citing 24 C.J.S. 1187–1188). 26

People v. Estoista, 93 Phil. 647, 655 (1953) (Res.) citing 24 C.J.S. 1187–1188, cited in People v. Dionisio, 131 Phil. 409 (1968); Baylosis v. Chavez, 279 Phil. 448 (1991); People v. Tongko, 353 Phil. 37 (1998) and Lim v. People, 438 Phil. 749 (2002). 27

The following passage from Estoista, relying on the American legal encyclopedia Corpus Juris Secundum, has become the template for rejecting claims of cruel punishment using these standards:chanRoblesvirtualLawlibrary It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. ―The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.‖ (24 C.J.S. 1187–1188.) Expressed in other terms, it has been held that to come under the ban, the punishment must be ―flagrantly and plainly oppressive,‖ ―wholly disproportionate to the nature of the offense as to shock the moral sense of the community.‖ (Idem.). Id. 28

The standard of public outrage (―shock[ing to the] public sentiment‖ or ―shock[ing to the] moral sense of the community‖) is no different from that which ―shocks the most fundamental instincts of civilized man.‖ Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 473 [1947]) (Burton, J., dissenting) which ―[invites] the danger of subjective judgment x x x acute[ly],‖ Furman v. Georgia, 408 U.S. 238, 279 (1972), (Brennan, J., concurring).

29

The following typifies the analysis for rejecting claims of cruel punishment using the standards laid down in Estoista and related cases: Settled is the rule that a punishment authorized by statute is not cruel, degrading or disproportionate to the nature of the offense unless it is flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community. It takes more than merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution. Based on this principle, the Court has consistently overruled contentions of the defense that the penalty of fine or imprisonment authorized by the statute involved is cruel and degrading. Lim v. People, 438 Phil. 749, 754 (2002) (internal citation omitted; emphasis supplied). 30

Save for some modification, these are drawn from the ―principles‖ crafted by Mr. Justice William J. Brennan, Jr. in his concurring opinion in Furman v. Georgia, 408 U.S. 238, 274–277, 279–282 (1972), to aid in the interpretation of the Eighth Amendment. 31

See note 1.

32

Decision, pp. 12–13. Under Article 249 of the Code, homicide is punishable by reclusion temporal which ranges from twelve (12) years and one (1) day to twenty (20) years, with the medium term ranging from fourteen (14) years, eight (8) months and one (1) day to seventeen (17) years and four (4) months. 33

Under Article 268 of the Code, Slight Illegal Detention is also punishable by reclusion temporal. 34

This merely reflects the ordering of rights under our constitutional system with the right to life and liberty occupying a higher tier of protection than the right to property (thus claims of infringement of each right are subjected to different levels of scrutiny). See Ermita–Malate Hotel & Motel Operations, Ass’n., Inc. v. Hon. City Mayor of Manila, 127 Phil. 306, 324 (1967). 35

Save for the crime of estafa by issuing underfunded or unfunded checks which has been recognized as serving to ensure the stability of commercial transactions and the banking system. People v. Tongko, 353 Phil. 37, 44 (1998); Lim v. People, 438 Phil. 749, 755 (2002). 36

The provisions relating to the crime of arson were superseded by Presidential Decree (PD) Nos. 1613 and 1744. 37

E.g. robbery and related crimes (Articles 294, 295, and 297); brigandage (Article 306) and arson and related crimes (Articles 320–323, as amended by PD 1613 and PD 1744). 38

E.g. occupation of real property (Article 312); swindling of a minor (Article 317); removal, sale, or pledge of mortgaged property (Article 319) and special cases of malicious mischief (Article 328). 39

P142,000÷40=P3,550.

40

Article 315, paragraph 3.

41

353 Phil. 37 (1998).

42

438 Phil. 744 (2002).

43

Increasing the maximum penalty for such estafa to 30 years.

44

From Tongko:chanRoblesvirtualLawlibrary

The legislature was not thoughtless in imposing severe penalties for violation of par. 2(d) of Article 315 of the Revised Penal Code. The history of the law will show that the severe penalties were intended to stop the upsurge of swindling by issuance of bouncing checks. It was felt that unless aborted, this kind of estafa ―. . . would erode the people‘s confidence in the use of negotiable instruments as a medium of commercial transaction and consequently result in the retardation of trade and commerce and the undermining of the banking system of the country.” [Citing the ―Whereas‖ Clauses of PD 818]. People v. Tongko, supra note 41 at 44 (emphasis supplied). From Lim: Clearly, the increase in the penalty, far from being cruel and degrading, was motivated by a laudable purpose, namely, to effectuate the repression of an evil that undermines the country’s commercial and economic growth, and to serve as a necessary precaution to deter people from issuing bouncing checks. The fact that PD 818 did not increase the amounts corresponding to the new penalties only proves that the amount is immaterial and inconsequential. What the law sought to avert was the proliferation of estafa cases committed by means of bouncing checks. Taking into account the salutary purpose for which said law was decreed, we conclude that PD 818 does not violate Section 19 of Article III of the Constitution. Lim v. People, supra note 42 at 755 (emphasis supplied). 45

Republic Act No. 4103, as amended.

46

Article 61(2), Code.

47

―[B]y a syndicate consisting of five or more persons formed with the intention of carrying out‖ estafa involving ―money contributed by stockholders, or members of rural banks, cooperative, ‗samahang nayon(s)‘, or farmers association, or of funds solicited by corporations/associations from the general public‖ (Section 1). 48

People v. Hernandez, 99 Phil. 515 (1956); People v. Lava, 138 Phil. 77 (1969).

49

Gumabon v. Director of the Bureau of Prisons, 147 Phil. 362 (1971).

50

―Retroactive effect of penal laws. – Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.‖ 51

The Court made such recommendation in People v. Monleon (165 Phil. 863 1976) where the accused, while inebriated, unintentionally killed his wife in the course of disciplining their child. We explained: ―[C]onsidering that Monleon had no intent to kill his wife and that her death might have been hastened by lack of appropriate medical attendance or her weak constitution, the penalty of reclusion perpetua appears to be excessive. A strict enforcement of the provisions of the Penal Code means the imposition of a draconian penalty on Monleon.‖ Id. at 870. Under Article 246 of the Code, parricide is punishable by reclusion perpetua to death.

52

The Code was approved on 8 December 1930 but took effect on 1 January 1932.

CONCURRING OPINION

BRION, J.: I agree with the ponencia ’s conclusion that Lito Corpuz is guilty of the crime of Estafa as the facts and the evidence sufficiently established his guilt beyond reasonable doubt. I also support the majority‘s decision not to ―judicially interpret‖ th penalties imposed under Article 217 (Malversation of Public Funds or Property), Articles 299–303 (Robbery), Articles 308–309 (Simple Theft), Article 310 (Qualified Theft), Articles 315–318 (Estafa and other forms of Swindling), Articles 320–325 (Arson), and Articles 327–329 (Mischiefs) of the Revised Penal Code (RPC), by adjusting, for inflation, the value of the money or property (subject of the crime) to its 1930 value. My reasons for supporting the ponencia are as follows:chanRoblesvirtualLawlibrary First, the Court has no jurisdiction to determine the propriety of imposing the penalties prescribed under the other crimes in the RPC. Second, modifYing the penalties, as several of my esteemed colleagues have proposed, is not judicial interpretation that simply looks at the letter and spirit of the law; it is judicial legislation that unconstitutionally (and thus, illegally) breached the doctrine of separation of powers. Third, the present day application of the 1930 values will not result in the denial of Corpuz‘s right to equal protection of the law. Fourth, the constitutionally and legally permissible solution to the perceived disparity between the prescribed penalty and the crime in light of the present values of money and property is the grant, by the President of the Philippines, of executive clemency through pardon or parole. Fifth, the minority‘s position can, in effect, lead to repercussions that could potentially destabilize the application of our penal laws and jurisprudence, as well as further clog the Court‘s already congested dockets. Lastly, I cannot agree with the expressed opinion that the incremental penalty imposed on estafa is unconstitutional for being a cruel and unusual punishment; like the rest of the majority, I believe that no such effect occurs under the present law and its application. I. The Court has no jurisdiction to determine the propriety of imposing the penalties prescribed under other crimes in the RPC.

The dissenting opinion of Justice Abad, as supported by several other justices, sought to adjust for inflation the amounts involved in estafa; by so doing, he also sought to ―judicially interpret‖ the subject matter of the crimes of malversation, theft, qualified theft, arson and mischiefs. In my view, what they propose to do involves an undue and unwarranted invocation of the Court‘s judicial power– an act that cannot be done without violating the due process rights of the Republic. Notably, the Republic focused solely and was heard only on the matter of estafa. In fact, the present case is only about estafa, not any other crime. To touch these other crimes in the present case likewise involves acts of policy determination on the substance of the law by the Judiciary – a violation of the highest order of the limits imposed on us by the Constitution. I am not unaware that an appeal in criminal cases throws the case wide open for review, and allows the reviewing tribunal the power to correct errors or to reverse the trial court‘s decisions on the grounds other than those raised by the parties as errors. 1 In reviewing criminal cases, we recognize our duty to correct errors as may be found in the judgment appealed regardless of whether they had been made the subject of assignments of error or not. This discretion, however, is limited to situations where the Court intends to correct the trial court’s errors in applying the law and appreciating the facts. A quick survey of jurisprudence shows that this includes re–evaluating factual questions presented before the trial court,2 weighing the credibility of witnesses and other pieces of evidence presented before the trial court,3 or applying the proper penalty.4 Thus, at most, the Supreme Court‘s wide discretion in reviewing criminal cases allows it to motu proprio provide a proper interpretation of the penal law being applied. This discretion, however, does not extend to the power to adjust the penalty defined in the law, based on the monetary value of the property involved in the crime of estafa. More than this, the Court‘s discretion does not allow it to similarly adjust the penalties defined in other crimes, similarly based on the monetary values of the property involved in these other crimes, as these other crimes are not involved in the present case. These crimes and their penalties have neither been adjudicated upon by the trial court nor by the CA; neither is the ―judicial interpretation‖ of their penalties necessary to determine whether Corpuz committed the crime of estafa in the present case. Assuming, for the sake of argument, the validity of Justice Abad‘s arguments regarding the disproportionality of the penalties defined in these crimes (as the intrinsic value of the money in properties involved have significantly dropped), we still cannot ipso facto apply the adjustments he seeks in the present estafa case, to the other crimes. The proportionality issue in estafa is different from the proportionality issue in these other crimes, as each crime is different from another. Let me point out that there are considerations in determining whether a penalty is proportional to crimes other than the monetary value of the property involved. The perpetration of fraud, the key element in estafa, is not present in theft or arson, while the abuse of public office is a unique key element in malversation. We cannot make a uniform ruling adjusting the amounts involved in these crimes simply based on inflation and without considering the other factors that Congress considered in imposing the values of the property involved in these crimes. This conundrum again shows that the judicial interpretation espoused by the minority is actually a judicial usurpation of Congress' prerogative to define crimes and to determine their penalties.

II. The enduring constitutional and jurisprudential imperative upholding the separation of powers completely abhors any unwarranted intrusion and impermissible usurpation of the authority and functions of a co–equal branch A characteristic and cardinal principle that governs our constitutional system is the separation of powers.5 The Constitution does not expressly provide for the principle of separation of powers. Instead, it divides the governmental powers among the three branches – the legislative, the executive and the judiciary. Under this framework, the Constitution confers on the Legislature the duty to make the law (and/or alter and repeal it), on the Executive the duty to execute the law, and on the Judiciary the duty to construe and apply the law.6 Underlying the doctrine of separation of powers is the general proposition that the whole power of one department should not be exercised by the same hands that possess the whole power of the other departments.7Within their respective spheres of influence, each department is supreme and the exercise of its powers to the full extent cannot be questioned by another department. Outside of their defined spheres of action, none of the great governmental departments has any power, and nor may any of them validly exercise the powers conferred upon the others.8 Section 1, paragraph 1, Article VIII of the Constitution states that ―judicial power shall be vested in one Supreme Court and such lower courts as may be established by law.‖ Simply stated, what the Constitution confers on the Court is only ―judicial power‖ and it is this judicial power that serves as the measure of the permissible reach of the Court‘s action.9 In short, the Judiciary can neither make the law nor execute it, as its power is strictly confined to the law‘s interpretation and application, i.e., to what is aptly termed 'judicial‖ power. II.A. Judicial power; its scope and limitations Section 1, paragraph 2, Article VIII of the Constitution states that judicial power ―includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable,‖ as well as to ―determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.‖ Traditionally, judicial power has been defined as ―the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.‖ 10 It is ―the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violation of such rights.‖ 11 In this light, no court can exercise judicial power unless real parties come before it for the settlement of actual controversy and unless the controversy is of the nature that can be settled in a manner that binds the parties through the application of existing laws.12 This traditional concept of judicial power, as the application of law to actual controversies, reflects the constitutional imperative of upholding the principle of separation of powers, such that the Judiciary has no power to entertain litigations involving the legality, wisdom, or the propriety of the conduct of the Executive; neither has it the power to enlarge, alter or repeal laws or to question the wisdom, propriety, appropriateness, necessity, policy or expediency of the laws.13 While the Constitution has now extended the scope of judicial power beyond the mere application of law and the settling of disputes (as it now includes the duty to determine whether

or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government), this expanded scope does not still permit any inquiry into the conduct or act of either of the executive or the legislative branch other than to determine whether either branch violated the Constitution or gravely abused its discretion in a manner amounting to lack or excess of jurisdiction. II.B. The power to define crimes and their penalties lies in the legislature as an imperative of the principle of separation of powers On the legislature‘s exclusive domain, through lawmaking, lies the authority to define what constitutes a particular crime in this jurisdiction. It is the legislature, as representative of the sovereign people, that determines which acts or combination of acts is criminal and what the ordained punishments shall be.14 Judicial interpretation of penal laws should be aligned with the evident legislative intent, as expressed primarily in the language of the law as it defines the crime.15 As the Constitution vests the power to enact laws on the legislature, the courts cannot arrogate the power to enlarge the scope of the crime, introduce matters that the legislature clearly did not intend, redefine a crime in a manner that does not hew to the statutory language,16or modify the penalty to conform to the courts' notion (out of the innumerable number of notions) of justice and fairness. A becoming regard for the prerogative of Congress in defining crimes/felonies should prevent the Court from making any broad interpretation of penal laws where a ―narrow interpretation‖ is appropriate.17 ―The Court must take heed to language, legislative history and purpose, in order to strictly determine the wrath and breath of the conduct the law forbids.‖ 18 II.C. “Plain meaning rule” in statutory construction should be applied in reading Article 315 ofthe RPC The cardinal canon in statutory construction – the plain meaning rule or verba legis – requires that ―the meaning of a statute should, in the first instance, be sought in the language in which the act is framed; if the language is plain, the sole function of the courts is to enforce it according to its terms.‖ 19 In interpreting any statute in the exercise of its judicial power of applying the law, the Court should always tum to this cardinal canon before all others. ―Courts should always presume that a legislature says in a statute what it means and means in a statute what it says there,‖ 20 and that the legislature knows ―the meaning of the words, to have used them advisedly, and to have expressed the intent by use of such words as are found in the statute.‖ 21 Thus, when the law is clear and free from any doubt or ambiguity,22 and does not yield absurd and unworkable results23 the duty of interpretation, more so of construction, does not arise;24 the Court should resort to the canons of statutory construction only when the statute is ambiguous25 Interpretation, as understood in the rules of statutory construction, refers to the art of finding out the true sense of any form of words, or the sense which their author intended to convey.26 Construction, on the other hand, refers to the art of drawing conclusions from matters beyond the direct expressions of text, from elements known from and given in the text, or conclusions that are in spirit, but not within the text,27 where the intention is rendered doubtful, among others, because the given case is not explicitly provided for in the law28 or because the

words used are obscure or susceptible to numerous interpretations. Both these two terms, however, have no place in the present case as the meaning of the penalties imposed is clear and needs neither construction nor interpretation. II.D. The ''plain meaning rule” and the principle of separation of powers prevent this Court from modifying, by adjusting for inflation, the penalties under Article 315 of the RPC The language of the penalty clauses of Article 315 of the RPC is plain and clear; no reservation, condition or qualification, particularly on the need for adjustment for inflation, can be read from the law, whether by express provision or by implication. The clear legislative intention to penalize estafa according to the ―amount of fraud‖ as enumerated in the law, therefore, should be deemed complete – Article 315 embodies all that the legislature intended when the law was crafted. As the words of Article 315 are clear, the Court cannot and should not add to or alter them to accomplish a purpose that does not appear on the face of the law or from legislative history,29i.e., to remedy the perceived grossly unfair practice of continuing to impose on persons found guilty of estafa the penalties that the RPC Commission pegged on the value of money and property in 1930. Notably, in his approach in the present case, Justice Abad labors under the presumption that the RPC Commission intended that the penalties under Article 315 of the RPC should adopt and reflect the values of money and property prevailing at the time of the commission of the crime; hence, his position that the ―amount of fraud‖ should be adjusted for inflation. I find this approach and the resulting position manifestly flawed; Justice Abad effectively posits that the ―amount of fraud‖ as the basis of the penalty will significantly vary at each instance as this will depend on such factors as the kind or type of the thing or property subject of the crime, and its corresponding monetary value at the time of the commission of the crime. The monetary value, in tum, will depend on several variables affecting the economy. To my mind, these are clearly matters of fact and policy determination that are far beyond the scope of judicial power. In fact, a review of several amendatory statutes of Article 315 of the RPC reveals a legislative intent contrary to Justice Abad‘s proposition that the RPC Commission intended that the ―amount of fraud‖ as basis for the penalties should account for the inflation. In point are the following: (1) Presidential Decree No. 818 (enacted in October 22, 1975) increased the penalties in cases of estafa resulting from bouncing checks under Article 315(2)(d); and (2) Presidential Decree No. 1689 (enacted on April 6, 1980) increased the penalty for certain forms of estafa under Articles 315 and 316. These statutes increased the penalties for estafa under certain conditions despite the then already declining monetary value on account of inflation. Arguably, the Court had in the past (as in the cases cited by Justice Abad) resorted to interpretation of monetary values to cope with inflation. These instances, however, concerned awards of civil liability and moral damages for death.30 These cases involved civil damages awards that are in stark contrast with the penalty issue that faces this Court in the present petition. In fact, the Historical Notes of the RPC Commission31 shows the law‘s concern

for the heirs of the deceased (victim) as the force that impelled the legislature to increase the civil indemnity by statute;32 the Court simply took judicial notice of this concern in interpreting the monetary values in the cited cases. Moreover, Justice Abad‘s presumption patently deviates from the rule of progressive interpretation that ―extends by construction the application of a statute to all subjects or conditions within its general purpose or scope that come into existence subsequent to its passage[.]‖ 33 The rule requires that ―a word of general signification employed in a statute should be construed, in the absence of legislative intent to the contrary, to comprehend not only peculiar conditions obtaining at the time of its enactment but those that may normally arise after its approval as well.‖ 34 Thus, Article 315 of the RPC should be understood as embracing all things and property that may be subject of the crime of estafa regardless of the changes in their monetary value, and that the ―amount of fraud‖ as basis for the penalty (and as enumerated under Article 315) should be applied without reference to these changes. Then, too, Justice Abad‘s position departs from the theory of originalism that he used as supporting argument. Originalism is generally employed in relation with the Constitution and has its roots in the ―original‖ intent of the framers of the Constitution. It is a theory or a framework of principles used in interpreting and understanding the texts of the Constitution. It is premised on the idea that the original meaning of the Constitution is relatively fixed, and the originalist enterprise is fundamentally committed to discerning the fixed meaning the framers gave to the Constitution.35 Originalism, as a theory of constitutional interpretation, has so far evolved into numerous versions, the more common of which are original understanding and originaI intent.36 Originalism as original understanding seeks the meaning of the words themselves as understood at the time,37or the meaning of the words to the society that adopted it – regardless of what the framers might secretly have intended.38 In contrast, originalism as original intent seeks the meaning of the words according to what the framers had in mind39 or the meaning that the framers attached to the words that they employed in the Constitution.40 As a theory of constitutional interpretation, I submit that originalism cannot properly be applied to interpret and modify Article 315 of the RPC because this is a statute, not a constitutional provision to which the theory of originalism generally applies. Granting that originalism can be permissibly adopted to interpret statutes, the theory – whether viewed as original understanding or original intent – commands that Article 315 be read and interpreted according to its fixed and original meaning. Thus, in the same manner that the rule of progressive interpretation bars reference to the changes in the monetary values of the things and property subject of the crime, under the theory of originalism, the ―amount of fraud‖ as basis for the penalty (as enumerated under Article 315), should likewise be applied without reference to the changes in the monetary values. Accordingly, I find Justice Abad‘s proposition in this case to be improper and inappropriate because: (1) the modification of the penalty transgressed the clear intent of the legislature as the adjustment for inflation is not supported by the letter of Article 315 of the RPC nor by its intent; (2) in adjusting for inflation the monetary values to modify the penalties under Article

315, the Court resorted to construction that the law and the circumstances clearly did not require; and (3) in modifying the penalty by construction, the Court manifestly usurped, by judicial legislation, the power that rightfully belongs to the legislature. III. The application of the penalties prescribed under Article 315 of the RPC, as written, would not violate Corpuz’s right to equal protection of the law Section 1, Article III of the 1987 Constitution pertinently provides: ―nor shall any person be denied the equal protection of the laws.‖ The equal protection clause means that no person or class of persons shall be deprived of the same protection of laws enjoyed by other persons or other classes in the same place in like circumstances.41 It demands that all persons or things similarly situated should be treated alike, both as to the rights conferred and responsibilities imposed.42 The equal protection, however, does not demand absolute equality under all circumstances. The protection recognizes that persons are not born equal and have varying handicaps that society has no power to abolish.43 Thus, the equal protection clause permits reasonable classifications provided that the classification: (1) rests on substantial distinctions; (2) is germane to the purpose of the law; (3) is not limited to existing conditions only; and (4) applies equally to all members of the same class.44 The application of the penalties under Article 315 of the RPC, as written, to the present situation does not violate Corpuz‘s right to the equal protection of the law. The circumstances prevailing when the RPC Commission fixed the penalties for estafa in 1930, vis–a–vis the circumstances presently obtaining, hardly differ, and the considerations that impelled the RPC Commission in fixing the mode and duration of these penalties persist and continue to justifY their application to the present conditions. The key element in estafa is the fraudulent act committed that has caused harm to others. Estafa penalizes the fraudulent act. I submit that there has been no change in the way the RPC defines fraud and, hence, there should be no reason for a change in the way a fraudulent act is penalized. A fraud committed in the 1930s should be punished in the same manner as a fraud committed in the present day. That the consequences of the fraudulent act constituted the basis for determining the gradation of penalties was a policy decision that Congress had the prerogative to make. This included the value behind each threshold and its corresponding penalty. What was true then is still true today. Thus, the disparity between the monetary values of things and property in the 1930s and the prevailing monetary values of like things and property do not amount to distinctions so substantial that they would require this Court to treat and classifY Corpuz differently from persons who committed estafa in 1930. In fact, the converse proposition, i.e., to treat Corpuz and others who will, from here on, commit the crime of estafa differently from those who committed the same crime in the 1930s up to and prior to the decision in this case, by modifYing the penalty according to what it perceived as the correct inflation rate, will inevitably violate the constitutional right of the latter group of persons to the equal protection of the law. This modification of the penalty effectively dictates a classification that does not rest on

substantial distinctions; is irrelevant to the purpose of the law punishing estafa, i.e., to punish and discourage dishonesty and unfaithfulness in the administration or care of money, goods or other personal property received for the purpose;45 and applies only to those who commit the crime subsequent to the decision. IV. The grant, by the President of the Philippines, of executive clemency through pardon or parole, when warranted, would sufficiently address the perceived disparity, in the context of the present values of money and property, between the prescribed penalty and the crime committed I further submit that the law, in its wisdom, already provides a constitutionally and legally permissible solution to what Justice Abad perceived as the ―grossly unfair practice of continuing to impose on persons found guilty of certain crimes the penalties [that had been] pegged on the value of money and property more than 80 years ago in 1930.‖ These solutions are the exercise, by the President of the Philippines of his clemency powers under Section 19, Article VIII of the Constitution,46 and the exercise by this Court of its recommending power under Article 5, paragraph 2, of the RPC. Article 5, paragraph 2, of the RPC states that when the strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, considering the degree of malice and the injury caused by the offense, ―the [C]ourt shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper[.]‖ The factual and legal conditions that some members of this Court feel badly about can be addressed through the exercise of this recommendatory power. This course of action may adequately address whatever perceived disparity there might be, created by inflation, between the crime and the penalty while preserving and upholding, at the same time, the cardinal principle of the separation of powers. The Court is not likewise barred from calling the attention of Congress to the perceived disparity so that any problem there can be addressed through legislation. In sum, even granting arguendo that the penalty the CA imposed on Corpuz is ―grossly unfair‖ from the economic and pragmatic point of view (as Justice Abad has carefully crafted), the solution to this ―gross unfairness‖ is not for this Court, by itself, to provide. Article 315 of the RPC is plain and unambiguous and Corpuz‘s case falls clearly within its provisions. Hence, under the circumstances and within the context of this case, the Court‘s duty is simply to apply the law. Resorting to judicial legislation by construction encroaches into the exclusive domain of the legislature a course that clearly violated the constitutional separation of powers principle. V. The effect of Justice Abad’s '"judicial interpretation” could have destabilizing repercussions on the application of our penal laws and jurisprudence. It will as well further clog the Court’s already congested dockets. I believe that Justice Abad‘s proposition, while grounded on noble intentions, could destabilize the application of our penal laws. I submit the following practical considerations against it:chanRoblesvirtualLawlibrary First, Justice Abad‘s proposal, in effect, postulates that the monetary value of the money and property subject of the crime should be kept at its value at the time the crime was legislated. This prompted his demand to adjust the present day values of the amounts involved in

distinguishing the penalties for estafa, qualified theft, malversation, among others, to keep their values at the 1930‘s level. This argument applies not just to the crimes it has enumerated, but to other crimes which use the value of the property involved in the criminal act as an element of the crime, or as a standard for determining the penalty of the crime. Examples of these offenses include plunder47 (which includes as an element of the crime the acquisition of at least PSO million in ill–gotten wealth) and the failure by a covered institution to report covered transactions as defined in the Anti–Money Laundering Act.48 Should the amounts involved in these crimes be automatically adjusted now, to keep them within their value at the time the crimes were defined and penalized? Both the crimes of plunder and money–laundering, for instance, are of relatively recent enactment. The Act Defining the Crime of Plunder was passed in 1991 and the Anti–Money Laundering Act in 2001. When do we adjust the value of these amounts so that they would remain in keeping with the intent of Congress at the time of its enactment? Do we adjust these for inflation every year, from the time of enactment, or after ten, or twenty years when the value of the peso has significantly changed? The lack of any specific answer to these questions reaffirms that the prerogative to value the money or property involved in a crime lies with Congress and is not for the courts to make through ―judicial interpretation.‖ Second, the proposition would open the floodgates for habeas corpus petitions for the adjustment of the penalties imposed on convicts now in prison for estafa. These petitions would be based on equal protection grounds, swamping the courts with pleas for the reduction of sentences. Significantly, in undertaking adjustments, it would be inaccurate to apply the 1:100 adjustment ratio that Justice Abad uses as base because these convicts committed their respective crimes in different years. Effectively, all these petitions would be resolved on a case– to–case basis as proper proportionality would have to be determined based on inflation in these different years. VI. The penalties in estafa do not violate the constitutional prohibition against cruel, degrading or inhuman punishment I cannot agree that the disproportionality in terms of the length of imprisonment and the amount involved in the estafa is within the contemplation of the constitutional prohibition against cruel, degrading or inhuman punishments. First, I submit that the issue of a statute‘s constitutionality, including those of criminal statutes, should be raised at the earliest possible opportunity. The ponencia ’s summation of the case‘s antecedents does not show that the constitutionality of the estafa‘s penalty had been raised in the trial court, or in the CA, and even in the present petition in the Supreme Court. As I earlier discussed, we have a wide latitude of discretion in reviewing criminal cases, especially in comparison to our approach in reviewing the civil and labor cases appealed before us. But this wide latitude, to my mind, does not authorize us to disregard the requirements of constitutional litigation. Even assuming that the Court may, on its own, raise the issue of constitutionality of the penalty of estafa, the principle of stare decisis bars us from relitigating an issue that has already been

decided. The Court has had, on two occasions, upheld the constitutionality of the penalty imposed on estafa. In Lim v. People,49 the Court en bane reiterated a prior ruling by the Court‘s Second Division in People v. Tongko,50 which ruled that the increase in the penalty for estafa, committed through bouncing checks under Presidential Decree (PD) No. 818, does not violate the constitutional prohibition against cruel, degrading or inhuman punishment. The petitioners in Lim argued that PD No. 818 is a cruel, degrading, or inhuman punishment for the following reasons: first, the penalty of reclusion perpetua under PD No. 818 for estafa involving the amount of P365,750.00 is too disproportionate to the crime it punishes; and second, the penalties for estafa through false pretenses or fraudulent acts (committed through bouncing checks) increased without a corresponding increase in the original amounts for estafa defined in the RPC, when these amounts have become negligible and insignificant compared to the present value of the peso. The Court in Lim held that the increase in penalties provided by PD No. 818 is neither the cruel nor degrading punishment that the Constitution contemplates. Affirming this ruling in Tongko, the Court held that ―the prohibition of cruel and unusual punishment is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount[.]‖ 51 According to Lim v. People,52 ―It takes more than merely being harsh, excessive, out of proportion or severe for a penalty to be obnoxious to the Constitution.‖ The impugned penalty must be ―flagrantly and plainly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community.‖ 53 The Court also noted that while PD No. 818 makes the penalties for estafa more severe, this severity alone does not make it the cruel or degrading punishment that the Constitution prohibits. The Court observed that the increase of the penalties is not without justification: the increase in penalty was intended to repress the crime of swindling through bouncing checks, as it erodes the people‘s confidence in using negotiable instruments and results in the ―retardation of trade and commerce and the undermining of the banking system of the country.‖ 54 The present case involves arguments similar to those the Lim petitioners presented, and I find that no basis exists for the Court to deviate from its earlier ruling. Notably, the Court en banc arrived at this ruling without any reservations or dissenting opinions. I submit that the Court should respect and recognize the principle of stare decisis in this case, as Lim stands as precedent against the arguments raised in the current case. They both involve the same issues and arguments; the penalty imposed by PD No. 818, which was contested in Lim and Tongko, was even higher than the penalties contested in the current case (which involves estafa without the qualifYing circumstance of having been committed through bouncing checks). These considerations, to my mind, effectively refute the arguments regarding the severity and disproportionality of the penalties under estafa presented in the current case. If we have twice respected and recognized the legislative‘s prerogative to increase the penalty of estafa committed through PD No. 818, why should we now deny them this prerogative and assert for ourselves the authority to determine the penalty of estafa itself? Neither is a perceived disproportionality in the penalties and its comparison with the penalties of

other crimes sufficient to establish the questioned penalty as cruel or degrading. In Baylosis v. Hon. Chavez, Jr.,55 the Court en banc upheld the constitutionality of Section 1 of PD No. 1866, which penalizes with reclusion perpetua ―any person who shall unlawfully manufacturer, deal in, acquire, dispose, or possess any firearm,‖ ―in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion.‖ The petitioners in Baylosis questioned the constitutionality of the penalty, pointing out, among other arguments, that the crime of possessing a firearm in furtherance of rebellion is even more severe than the crime of rebellion itself. The Court in Baylosis interestingly ruled that the difference in the penalty between PD No. 1866 and the RPC does not necessarily establish that the heavier penalty under PD No. 1866 is excessive, disproportionate, or cruel or unusual. The Court noted that it could be argued the other way around – that the penalty of the crime of rebellion is too light; and that the remedy for this situation is through law, and not judicial interpretation. Thus, Baylosis established that in determining the severity and disproportionality of a penalty, the Court should look only at the crime and penalty in question and avoid its comparison with other crimes. And in determining whether a penalty is wholly disproportional to the crime it punishes (so that it shocks the community‘s moral standards), we must examine whether the penalty imposed is justified by the evil sought to be prevented by Congress in penalizing the crime. In this case, the Solicitor General has adequately provided the reason for the penalties behind the estafa, i.e., to protect and encourage the growth of commerce in the country and to protect the public from fraud. This reason, to my mind, is sufficient to justify the penalties for estafa. That the amount taken from the private injured party has grown negligible through inflation does not ipso facto make the penalty wholly disproportional. In determining whether a penalty is cruel or unusual, we have considered not just the amount taken from the private injured party, but also considered the crime‘s impact on national policy and order.56 It cannot be gainsaid that the perpetuation of fraud adversely impacts on the public‘s confidence in our financial system and hinders as well the growth of commerce. As a final point, I note that the 1987 Constitution has changed the language of the prohibition against cruel and unusual punishments under the 1935 and 1973 Constitutions to ―cruel, degrading or inhuman.‖ This change of wording is not without reason – it was designed to give Congress more leeway in formulating the penalties it deems fit to the crimes that it may decide to penalize in the future. As explained by Constitutional Commissioner Fr. Joaquin Bernas S.J., who sponsored the draft Bill of Rights, the word unusual was replaced with the words ―degrading or inhuman‖ because Congress, in the future, may create a penalty not yet known or imposed; and the fact of its novelty should not be a ground to question its constitutionality.57 I submit that we, as interpreters and enforcers of the Constitution, should not go against the general spirit and intent of the Constitution to recognize the prerogative of Congress to create penalties. Immediately equating disproportionality and severity to a cruel, degrading punishment unduly limits this prerogative, as it would open the floodgates for the review of penalties on the mere contention or belief that the imprisonment imposed is too long or that the fines assessed are too high. These, to me, are policy questions that should be best addressed by the political branches of government, not by the Supreme Court.

In these lights, I fully concur with and join the ponencia of Justice Peralta.

Endnotes: 1

People of the Philippines v. Salva, 424 Phil. 63, 75 (2002).

2

Obosa v. CA, 334 Phil. 253, 272 (1997).

3

Aradillos v. Court of Appeals, 464 Phil. 650, 663 (2004).

4

Quemuel v. CA, et al., 130 Phil. 33, 35–36 (1968).

5

See I Defensor–Santiago, M., Constitutional Law, Text and Cases (2000), p. 163.

6

Id. at 169–170, citing US. v. Ang Tang Ho, 43 Phil. 1 (1922).

7

Id. at I64.

8

Id. at 194, citing Angara v. Electoral Commission, 63 Phil. 139 (1936).

9

Bernas, S. J., The 1987 Constitution ofthe Republic of the Philippines: A Commentary, (2009), p. 946. 10

Bernas, S.J., The I 987 Constitution of the Republic of the Philippines, (2009), p. 946, quotingMuskrat v. United States, 219 U.S. 346 (1911 ). 11

Id. at 946, quoting Lopez v. Roxas, 17 SCRA 756, 761 (1966).

12

Id. at 946–947.

13

See I Defensor–Santiago, M., Constitutional Law, Text and Cases (2000), pp. 586–587.

14

See Valenzuela v. People, 552 Phil. 381, 414 (2007); and Laurel v. Judge Abrogar, 518 Phil. 409, 432–433 (2006). 15

Valenzuela v. People, supra, at 414.

16

Id. at 414–415.

17

Id. at 415.

18

Laurel v. Judge Abrogar, supra note 14, at 433, citing Dowling v. United States, 473 U.S. 207 (1985); and Valenzuela v. People, supra note 14, at 415. 19

Caminetti v. United States, 242 U.S. 470 (1917).

20

Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, (1992); and Insular Bank of Asia and America Employees' Union (IBAAEU) v. Hon. lnciong, etc., et al., 217 Phil. 629, 642 643 (1984).

21

Philippine Amusement and Gaming Corporation (PAGCOR) v. Philippine Gaming Jurisdiction, Incorporated (PEJJ), G.R. No. 177333, April24, 2009, 586 SCRA 658, 665. 22

Cebu Portland Cement Company v. Municipality of Naga, Cebu, et al., 133 Phil. 695,699 (1968). 23

Dennis B. Funa, Canons of Statutory Construction (2011), p. 215, citing CONN. GEN. STAT. Par. 1–2z, 2007. 24

See Catiis v. Court of Appeals (17th Division), 517 Phil. 294, 303 304 (2006).

25

Dennis B. Funa, Canons of Statutory Construction (2011), pp. 214–215, citing CONN. GEN. STAT. Par. 1–2z, 2007. 26

ld. at 4–5, citing Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws (1896). See also Black‘s Law Dictionary (Fifth edition), p. 734. 27

Dennis B. Funa, Canons of Statutory Construction (2011), pp. 4–5, citing Henry Campbell Black, Handbook on the Construction and Interpretation of the Laws (1896). See also Black‘s Law Dictionary (Fifth edition), p. 283. 28

Caltex (Philippines), Inc. v. Palomar, No. L–19650, September 29, 1966, 18 SCRA 247, 256.

29

See Burden v. Snowden, 2 Cal. 4th 556 (1992).

30

Justice Abad cited the following cases to support its position: People v. Amanses, 80 Phil. 424, 435 (1948); M Ruiz Highway Transit, Inc. v. Court of Appeals, 120 Phil. 102, 106 (1964); People v. Pantoja, 134 Phil. 453, 458 (1968); People v. Dela Fuente, 211 Phil. 650, 656 (1983); People v. Anod, G.R. No. 186420, August 25, 2009, 597 SCRA 205, 213; and People v. Tubongbanua, 532 Phil. 434, 454 (2006). Note that all of these cases involve the award of civil indemnity and moral damages for crimes and quasi–delicts resulting in death. In these cases, what the Court increased, through interpretation of the monetary values, was the civil indemnity awarded to the victim of the crime and not the penalty imposed on the offender. 31

See Emesto L. Pineda, Torts and Damages (2004), p. 139. As quoted: "Human life has heretofore been very cheap, in law and the practice thereunder. Before the passage of Commonwealth Act No. 284 in June 1938 the practice was to allow P1,000.00 to the heirs of the deceased in case of death caused by crime. Later, by virtue of that special law, a minimum of P2,000.00 was fixed, but the court usually awarded only the minimum, without taking the trouble to inquire into the earning capacity of the victim, and regardless of aggravating circumstances.‖ 32

33

Referring to Commonwealth Act No. 284.

Orceo v. Commission on Elections, Concurring Opinion, Associate Justice Brion, G.R. No. 190779, March 26, 2010, 616 SCRA 684, 703, citing Ruben E. Agpalo, Statutory Construction, 177–178 (2003).

34

Ibid.

35

See Keith E. Whittington, Originalism 2.0: The Twenty–Ninth Annual Federalist Society National Student Symposium On Law And Public Policy –– 2010: I. Originalism: A Rationalization For Conservativism Or A Principled Theory Of Interpretation?: Is Originalism Too Conservative?, Copyright (c) 20 II Harvard Society for Law & Public Policy, Inc., 34 Harv. J.L. & Pub. Pol'y 29. (www.lexisnexis.com) See also Thomas B. Colby and Peter J. Smith, Living Originalism, 2009 Duke law Journal, 59 Duke L.J. 239. (www.lexisnexis.com) 36

See Thomas B. Colby and Peter J. Smith, Living Originalism. 2009 Duke law Journal, 59 Duke L.J. 239. (www.lexisnexis.com) 37

See Keith E. Whittington, Originalism 2.0: The Twenty–Ninth Annual Federalist Society National Student Symposium On Law And Public Policy –– 2010: I. Original ism: A Rationalization For Conservativism Or A Principled Theory Of Interpretation?: Is Originalism Too Conservative?, Copyright (c) 2011 Harvard Society for Law & Public Policy, Inc., 34 Harv. J.L. & Pub. Pol'y 29. (www.lexisnexis.com) 38

See Thomas B. Colby and Peter J. Smith, Living Originalism, 2009 Duke law Journal, 59 Duke L.J. 239. (www.lexisnexis.com) 39

Ibid

40

See Thomas B. Colby and Peter J. Smith. Living Originalism, 2009 Duke law Journal. 59 Duke L.J. 239. (www.Iexisnexis.com) 41

City of Manila v. Han. Laguio, Jr., 495 Phil. 289, 326–327 (2005).

42

Ibid. See also Regala v. Sandiganbayan, 330 Phil. 678, 719 (1996), citing Gumabon v. Director of Prisons, 37 SCRA 420 (1971). 43

People of the Philippines v. Ching Kuan, 74 Phil. 23, 24 (1942).

44

Central Bank Employees Assoc., Inc. v. Bangko Sentral ng Pilipinas, 487 Phil. 531, 560 561 (2004); and Quinto v. Commission on Elections, G.R. No. 189698, December 1, 2009, 606 SCRA 258, 291. 45

Gregorio, Fundamentals of Criminal Law Review (2008), p. 953.

46

Section 19, Article VIII ofthe Constitution pertinently reads:chanRoblesvirtualLawlibrary

Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. 47

Sec. 2. Defmition of the Crime of Plunder; Penalties. – Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill–gotten wealth through a combination or series of overt criminal acts as described in Section 1 (d) hereof in the aggregate amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of

the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and all ill–gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State. 48

Section 3 Definitions – xxx

(b) ―Covered transaction‖ is a single, series, or combination of transactions involving a total amount in excess of Four million Philippine pesos (Php4,000,000.00) or an equivalent amount in foreign currency based on the prevailing exchange rate within five (5) consecutive banking days except those between a covered institution and a person who, at the time of the transaction was a properly identified client and the amount is commensurate with the business or financial capacity of the client; or those with an underlying legal or trade obligation, purpose, origin or economic justification. It likewise refers to a single, series or combination or pattern of unusually large and complex transactions in excess of Four million Philippine pesos (Php4,000,000.00) especially cash deposits and investments having no credible purpose or origin, underlying trade obligation or contract. SEC. 9. Prevention of Money Laundering; Customer Identification Requirements and Record Keeping. xxx (c) Reporting of Covered Transactions. – Covered institutions shall report to the AMLC all covered transactions within five (5) working days from occurrence thereof, unless the Supervising Authority concerned prescribes a longer period not exceeding ten {l0) working days. SEC. 4. Money Laundering Offense. Money laundering is a crime whereby the proceeds of an unlawful activity are transacted, thereby making them appear to have originated from legitimate sources. It is committed by the following:chanRoblesvirtualLawlibrary xxx (c) Any person knowing that any monetary instrument or property is required under this Act to be disclosed and filed with the Anti–Money Laundering Council (AMLC}, fails to do so. 49

438 Phil. 749 (2002).

50

353 Phil. 37, 43–44 (1998).

51

ld. at 43.

52

Supra note 47, at 754.

53

Ibid.

54

Supra note 47, at 755.

55

279 PhiL 448, 455 (1991).

56

See Lim v. People, supra note 47, at 755; People v. Tongko, supra note 48, at 44; and Baylosis v. Han. Chavez, Jr., supra, at 458, 465–466. 57

During the Constitutional Commission‘s deliberations on the Bill of Rights, Commissioner Maambong noted the change in language of the draft Constitution from ―cruel, degrading or inhuman‖ to ―cruel and unusual,‖ thus:chanRoblesvirtualLawlibrary MR. MAAMBONG: I will just ask one more question, Mr. Presiding Officer. On Section 22, the original phrase used in the 1935 Constitution was ―cruel and unusual punishment.‖ FR. BERNAS: Yes. MR. MAAMBONG: In the configuration of the 1973 Constitution, the phrase became ―cruel or unusual punishment.‖ FR. BERNAS: That is correct. MR. MAAMBONG: In the United States Constitution as it stands now, it is still ―cruel and unusual punishment.‖ But now in the present submission that we are going over, it is ―cruel or inhuman.‖ FR. BERNAS: ―Cruel, degrading or inhuman.‖ MR. MAAMBONG: I just want to find out, Mr. Presiding Officer, why the Committee changed the word ―unusual‖ to ―inhuman.‖ FR. BERNAS: The reason for the change, Mr. Presiding Officer, is this: We avoided the use of the word ―unusual‖ because it tended to give the interpretation that one cannot innovate therefore as far as penology is concerned –that, if a penalty is something that was never used before, then it would be invalid. So, in order to allow for the development of penology we decided that we should not prohibit unusual punishments in the sense that they are new or novel. Record of the I 986 Constitutional Commission, Vol. I, Jul. 17, 1986, R.C.C. No. 32.

DISSENTING OPINION

ABAD, J.:

The Court is apparently not prepared at this time to reexamine and change the existing practice of imposing the penalty for estafa based on the amount of the fraud committed in terms of the 1930 values of money and properties.

The Facts and the Case On May 2, 1991 Danilo Tangcoy entrusted P98,000 worth of jewelry items to petitioner Lito Corpuz for the latter to sell on commission. If sold, Corpuz was to turn over the proceeds to Tangcoy and, if not, he was to return the items after 60 days. But Corpuz neither remitted the stated proceeds nor returned what he got. Consequently, the Public Prosecutor of Olongapo charged him with estafa before the Regional Trial Court (RTC) of that city.1 On July 30, 2004 the RTC found Corpuz guilty as charged and sentenced him to suffer an indeterminate penalty of imprisonment from 4 years and 2 months of prision correccional in its medium period, as minimum, to 14 years and 8 months of reclusion temporal in its minimum period, as maximum.2 On appeal, the Court of Appeals (CA) affirmed3 Corpuz‘s conviction but modified the penalty to 4 years and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus incremental penalty of one year for each additional P10,000 for a total maximum of 15 years.4 Corpuz filed a motion for reconsideration of the appellate court‘s Decision but the CA denied the same, thus, the present petition for review. While the Court‘s Third Division was deliberating on the case, the question of the continued validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged these penalties to the value of money and property in 1930 when it enacted the Revised Penal Code.5 Since the members of the Division reached no unanimity on this question and since the issues are of first impression, they decided to refer the case to the Court En Banc for consideration and resolution. In view of the far reaching effects of any ruling in the case and the great number of accused who may be affected by it,6 the Court required the Office of the Solicitor General (OSG) and counsel for Corpuz to file their comments on the issues that the Court raised. Further, it invited a number of amici curiae for their views. The following amici graciously submitted their papers: a) De La Salle University College of Law Dean and head of the Free Legal Assistance Group, Jose Manuel L. Diokno; b) Ateneo de Manila School of Law Dean, Sedfrey M. Candelaria; c) University of the Philippines Professor Alfredo F. Tadiar; d) the Senate President; and e) the Speaker of the House of Representatives.7 The Court heard the parties and the amici on oral arguments on February 19, 2014, with Atty. Mario L. Bautista, entering his appearance as counsel de officio for Corpuz, and arguing the case on the latter‘s behalf.8 The Issues Presented The issues may be summarized as follows:chanRoblesvirtualLawlibrary 1. Whether or not, procedurally, the Court may determine the constitutionality of the penalty that the CA imposed on Corpuz even when he did not raise such question in his petition for review; 2. Whether or not the penalty of 4 years and 2 months to 15 years that the CA imposed on Corpuz for a P98,000 fraud based on the penalty that the legislature pegged on the value of money or property in 1930 violates his constitutional right to equal protection of the law; 3. Whether or not that portion of Article 315 of the Revised Penal Code that imposes on Corpuz

in addition to the basic penalty of 8 years and 1 day of imprisonment an additional incremental penalty of 1 year for each additional P10,000 of the amount of fraud in excess of P22,000 violates his constitutional right against cruel, unusual, and degrading punishment; and 4. If the answers to the second or third issues are in the affirmative, whether or not, applying the rules of statutory construction, the Court may, rather than declare the relevant statutory penalties unconstitutional, determine the legislative intent with respect to them and, accordingly, adjust the amount of the present fraud to its 1932 equivalent and impose the proper penalty. Discussion 1. Issues Raised Motu Proprio The OSG points out that it is not right for the Court to decide the issue of the correctness of the penalty imposed on Corpuz since he did not raise such issue.9 But the Court, like the CA, has always regarded it as a duty to the accused in every criminal case that comes before it to review as a matter of course the correctness of the penalty imposed and rectify any error even when no question has been raised regarding the same.10 That the error may have a constitutional dimension cannot thwart the Court from performing such duty. Besides, as Dean Sedfrey M. Candelaria, one of the amici, noted in his comment, the Court has in previous cases, when fundamental issues are involved, taken cognizance of the same despite lack of jurisprudential requirements for judicial review.11 Indeed, the Court said in People v. Hon. Judge Vera,12 that ―courts in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented x x x [t]hus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal.‖13 In Government Service Insurance System, Cebu City Branch v. Montesclaros,14 while the respondent manifested loss of interest in pursuing the case, the Court through Justice Antonio T. Carpio, said, that ―social justice and public interest demand that [x x x] the constitutionality of the proviso [be resolved]‖ since ―the issue involves not only the claim of [respondent] but also that of other surviving spouses who are similarly situated and whose claims GSIS would also deny based on the proviso.‖15 To the same effect is the Court‘s ruling in Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas.16 Here in Corpuz, the ruling of the Court will affect thousands of persons who are presently charged or in the future may be charged with crimes the penalties for which are pegged to the value of the money or property involved. Moreover, the Court has itself raised these issues because of their importance and has heard the parties both on written comments and on oral argument. The due process requirement for hearing and adjudicating the issues now before the Court has been met. Now to address the substantive issues:chanRoblesvirtualLawlibrary 2. Criminal Penalties and Inflation As a general principle, crimes found in the Revised Penal Code carry with them the same

penalties whatever year the accused commits them. For example, one who mutilates a Philippine coin in 1932, when the code took effect, would go to jail for 2 years and 4 months maximum, exactly the same penalty that another who mutilates a coin in 2014 would get. The correspondence between the gravity of the offense and the severity of the penalty does not change with the passage of time. But, unwittingly, the penalties for crimes involving property under the Revised Penal Code are in breach of that principle. Although these penalties are meant to be proportionate to the harm caused, they are not described in specific and constant terms like the number of days of incapacity for work of the offended party in physical injuries cases. Rather, the harm done in property crimes are made to depend on the ―amount of the fraud‖ committed,17 on the ―value of the property taken,‖18 on the ―value of the thing or property stolen,‖19 or on ―the value of the damage caused.‖20 As it happens, money and property values are in a state of constant change, and sways with the wind of economic change, primarily with the rate of inflation from year to year. The objects of commerce like bread and fish do not change but their prices or monetary values change in the course of time. For instance, in 1932 when the Revised Penal Code took effect, rice was priced at an average of P4.50 per cavan.21 If one steals a sack of rice in 1932, he would be imprisoned for 4 months maximum corresponding to the value of what he stole. At present, that sack of rice is priced at about P1,800.00 per cavan.22 If one steals a sack of rice today, he would be imprisoned for 4 years and 2 months maximum. In other words, in a crime involving property the penalty depends on when it is committed. Since the price of rice in 1932 (P4.50 per cavan) is a mere 0.25% of today‘s price (P1,800.00 per cavan), does this mean that the P100 today is the equivalent of only P0.25 in 1932? It is uncertain since the government did not yet conduct a statistical survey of the prices of key commodities in 1932 that would provide empirical support for such a conclusion.23 The first of such a statistical survey was made only in 1949, enabling the government after comparison with recent surveys to determine that the purchasing power of P1 in 1949 is the equivalent of about P100 today—P1 is to P100.24 For want of reliable 1930 economic data, it will be assumed for the purpose of this discussion that the purchasing power of the peso then did not vary much from that of 1949 which, as already stated, has been officially established. This assumption is based on the Court‘s own observation in the case of People v. Pantoja25 that the purchasing power of the peso in 1949 was ―one–third of its pre–war purchasing power,‖ meaning P1 as against P3. This currency movement is minimal and may, for convenience, be considered absorbed in the massive erosion of the purchasing power of the peso by about 100 times from 1949 to the present. Consequently, this discussion will use this reference rate—the P1 is to P100—in comparing the prices of the past (1930–1949) with the present. 3. Escalation of Penalties and the Equal Protection Clause The Revised Penal Code of 1930 pegs the penalties for estafa to the amount of fraud committed as follows: Amount of the Fraud

Penalty

1) P22,001 and above

=

2) P12,001 to P22,000 3) P6,001 to P12,000 4) P201 to P6,000 5) P0.01 to P200

= = = =

8 yrs. & 1 day plus 1 year for every additional P10,000.00 (but not more than 20 years) 4 yrs., 2 mos. & 1 day to 8 yrs. 6 mos. & 1 day to 4 yrs. & 2 mos. 4 mos. & 1 day to 2 yrs. & 4 mos. 4 mos. & 1 day to 6 mos.

Unmindful of the immense erosion of the purchasing power of the peso, courts have persisted in literally applying the above table of penalties in fraud cases. As a result, they in effect mete out heavier penalties from year to year for the commission of exactly the same offense. For instance, if the accused defrauds another of 79 cavans of rice in 1930–1949, then valued at only P1,422.00 (P18.00 per cavan), she would be imprisoned for 2 years and 4 months maximum. This would cause her pain but tolerable pain. Yet, if another commits exactly the same fraud today when that 79 cavans of rice is now valued at P142,200.00 (P1,800.00 per cavan), she would be committed to prison for 20 years maximum. She would leave prison an old woman, irreversibly deprived of the company of her family for the greater part of her life. This is a gross denial of her right to equal protection since the first offender got off after 2 years and 4 months whereas she got off after 20 years. Her 20–year prison term is of course enormous because the penalty for fraud amounting to P22,000.00 is already 8 years and 1 day maximum but, since the amount of her fraud (P142,200.00) exceeds that figure, she would suffer additional incremental imprisonment of 1 year for every P10,000.00 in excess of the P22,000.00 for a total of 20 years. This uneven treatment is true in Corpuz‘s case. The P98,000.00 jewelry items subject of his offense would have a value of only P980 in 1932. Consequently, had he committed his crime that year, he would have been imprisoned for only 2 years and 4 months maximum. But since he committed it 43 years later in 1991 when the jewelry items are now valued at P98,000.00 due to inflation, he would be imprisoned for 15 years maximum—the same crime, the same law, yet a shockingly higher penalty. This result would undoubtedly deny Corpuz his constitutional right to equal protection of the law. 4. Incremental Penalty and the Cruel, Unusual, and Degrading Punishment Clause Justice Antonio T. Carpio expressed the view, joined by Dean Diokno,26 that insofar as Article 315 imposes on Corpuz in addition to the basic penalty of 8 years and 1 day an additional incremental penalty of 1 year for each additional P10,000.00 of the amount of fraud in excess of P22,000.00, such law violates his constitutional right against cruel, unusual, and degrading punishment. Putting a price of P10,000.00, about the cost of five sacks of rice, for each additional year of imprisonment makes the penalty grossly disproportionate to the wrong committed. This view would thus have the incremental penalty voided. Professor Tadiar and Dean Diokno appear to be sympathetic to it.27 The incremental penalty is of course grossly disproportionate to the wrong committed. But that penalty would not have been regarded as such if the offense had been committed in 1932 when P10,000.00 was a hefty sum. Indeed, if it were to be adjusted for inflation, that P10,000.00

would be the equivalent of P1,000,000.00 today. An incremental penalty for each P1,000,000.00 would not have been that bad. Anyway, the point is that it is the curse of inflation, not the idea of an incremental penalty, which is the culprit. If Justice Carpio‘s view is adopted, the Court would annul the incremental penalty but maintain the validity of the basic penalties for fraud. But those penalties are just as disproportionate to the wrong committed. For instance, half a gallon of coconut cooking oil would cost about P2.03 in 1930–1949. If Alex gives Ben P2.03 in 1949 to buy for him such half–gallon but Ben instead pockets the P2.03, he would be imprisoned 6 months maximum for estafa. On the other hand, if Carlos gives Dante P203 today to buy for him also a half–gallon of coconut cooking oil but Dante instead pockets the P203, he would be imprisoned for 2 years and 4 months maximum. To be imprisoned and separated from family for 2 years and 4 months for the taking of the price of a half–gallon cooking oil, what it will cost a hungry couple and their child their meal, is just as cruel, unusual, and degrading. It is an outrage to a democratic society even if no incremental penalty is involved.28 The harshness of this antiquated 1930 scheme for punishing criminal offenders is doubly magnified in qualified theft where the offender is a domestic helper or a trusted employee. Qualified theft is a grievous offense since its penalty is automatically raised two degrees higher than that usually imposed on simple theft. Thus, unadjusted for inflation, the domestic helper who steals from his employer would be meted out a maximum of: a) 6 years in prison for a toothbrush worth P5;29 b) 12 years in prison for a lipstick worth P39;30 c) 14 years and 8 months in prison for a pair of female slippers worth P150;31 d) 20 years in prison for a wristwatch worth P19,000;32 or e) 30 years in prison for a branded lady‘s handbag worth P125,000.33 Unless checked, courts will impose 12 years maximum on the housemaid who steals a P39 lipstick from her employer. They will also impose on her 30 years maximum for stealing a pricy lady‘s handbag. This of course is grossly obscene and unjust, even if the handbag is worth P125,000.00 since 30 years in prison is already the penalty for treason, for raping and killing an 8–year–old girl, for kidnapping a grade school student, for robbing a house and killing the entire family, and for a P50–million plunder. It is not only the incremental penalty that violates the accused‘s right against cruel, unusual, and degrading punishment. The axe casts its shadow across the board touching all property–related crimes. This injustice and inhumanity will go on as it has gone on for decades unless the Court acts to rein it in. 5. Judicial Construction of Statutes But annulling Article 315 of the Revised Penal Code or portions of it slaps the hand of the legislature that enacted it in 1930 when the economy of the time warranted the amounts stated in those penalties. Allowing courts to adhere to that law but construe it instead in a way that would attain its purpose, an alternative based on long precedents, presents a more moderate remedy. It may be assumed that those who enacted the Revised Penal Code in 1930 did not foresee the onslaught of inflation in the second half of the century. They had an agricultural economy and,

presumably, the purchasing power of the peso at that time had not changed perceptibly in the years that they had known. It would be imprudent to believe that, if those legislators had an inkling of the shape and value of money and things would take down the years to 2014, they would have still pegged those penalties to their 1930 economy. But they did. Clearly, they were uninformed and, therefore, their intent must have been to match the penalties written in the law to the values of money and property as they understood it at that time. As it turned out, the passage of time altered what the 1930 legislature intended respecting those penalties. Time made those penalties toxic and this is exemplified in the case of Corpuz. On the one hand, if the Court were to adjust the penalty imposed on him to compensate for inflation, using the government‘s P1 to P100 equation, Corpuz should be deemed to have defrauded Tangcoy of only P980 rather than P98,000. He would then be meted out a penalty of only 2 years and 4 months maximum. This is about the same penalty imposed for the crimes of offending religious feelings,34 tumultuous disturbance,35 and slander,36 which are correctional penalties. On the other hand, if the amount of fraud is made to depend on the false assumption that the value of P1 in 1930–1949 is the same as the value of P1 today, Corpuz would be liable for fraud amounting to P98,000 and draw a penalty of 4 years and 2 months to 15 years maximum, an afflictive penalty. These 15 years would be within the range of the penalty for homicide37 or for intentional abortion thru violence against a pregnant woman,38 which means meting out to Corpuz a penalty equivalent to the taking of human life. About seven years ago, a lawyer accused his houseboy, Reynaldo Bayon, of stealing from him watches and jewelry worth P540,000.00.39 For this, the trial court imposed on Bayon the penalty of imprisonment for 30 years maximum. Ironically, the trial court meted out to Bayon the same penalty that another trial court imposed on Ricardo Solangon and Apolonio Haniel who kidnapped Libertador Vidal and demanded ransom from his tormented family.40 After lengthy negotiations, they settled for P50,000.00, got the money, and killed their victim. Since the police recovered only his bones, no one knew just how much Libertador suffered before being killed. Did Reynaldo, the houseboy, deserve the same severe penalty imposed on Ricardo and Apolonio for their brutal crime? Reynaldo did not rape his employer‘s wife, torture his children, or murder any of them. If the prosecution were to be believed, his employer merely lost some of his collection of watches and jewelry. In the present case, the wealthy jeweler did not lose his life to Corpuz. All that he supposedly lost to him were a few jewelry worth P98,000.00 today, the equivalent of but P980.00 in 1930–1949. Still, the Court would, literally applying the law, sentence Corpuz to a maximum of 15 years in prison like he already killed the jeweler in an angry confrontation. Again, the key to solving the problem that this case presents lies in ascertaining the will of the legislature that enacted the Revised Penal Code in 1930 and give its language the construction that will honor that will. Some, like the Office of the Solicitor General, the Senate President, and the Speaker of the House of Representatives hold the view that adjusting the penalties to compensate for inflation will amount to judicial legislation.41 But the Court need not rewrite the penalties that the law provides. Rather, the clear intent of the law can be given by, to borrow a phrase from Atty. Mario L. Bautista, counsel for Corpuz, ―harmonizing‖ the law or ―aligning the numerical figures‖42 to the economic realities of the present. To put it another way, ascertaining the facts of the case in order to faithfully apply to it the law as the legislature intended it is a judicial function. Dean Candelaria of Ateneo shares

this position.43 This would not have been the first time that the Court would have given a construction to the fixed monetary values set by law to take into account the problems caused by inflation. When the Code Commission drafted the Civil Code in 1949, it fixed the new minimum civil indemnity for death to P3,000.00.44 Article 2206 of the Code reads:chanRoblesvirtualLawlibrary Art. 2206. The amount of damages for death caused by a crime or quasi–delict shall be at least three thousand pesos, even though there may have been mitigating circumstances.45 The Civil Code sets the minimum compensation for death at only P3,000.00. Ordinarily, this legislative judgment has to be obeyed no matter if it already becomes harsh or unfair to the victim‘s heirs as inflation sets in. For the law is the law. Yet, following past precedents, the Court would, construing the law in the light of the inflationary movement of money values, set a new minimum of P6,000 in 1964,46 P12,000 in 1968,47 P30,000 in 1983,48P50,000 in 1990,49 and most recently, P75,000 in 2009.50 It regarded as inequitable on account of inflation the award of a measly P3,000 to the victim‘s heirs. Justice Jose C. Vitug observed that the Court increases the minimum civil indemnity ―to such amounts as the peso value might actually command at given times and circumstances.‖51 This is not judicial legislation but taking judicial notice of the relentless rise in money and property values over the years and construing the law in the light of such circumstances. The Court emphasized in People v. Pantoja52 that these judicial adjustments are dictated by: ―the difference between the value of the present currency and that at the time when the law fixing a minimum indemnity‖ was passed.53Pantoja explained that, at its writing, ―due to economic circumstances beyond governmental control, the purchasing power of the Philippine peso has declined further such that the rate of exchange now in the free market is U.S. $1.00 to P4.00 Philippine pesos.‖54 None of the justices of the Court, which included renowned Chief Justice Roberto Concepcion, Jose B.L. Reyes, Arsenio P. Dizon, Querube C. Makalintal, Fred Ruiz Castro, and Enrique M. Fernando, regarded as amounting to judicial legislation the decision interpreting the P3,000 minimum for death compensation established by law in 1949 as P12,000 in the economy of the late 60s. There is no record of Congress disagreeing with them. It makes no sense for the Court to refuse to use the same reasoning and not employ it to the judicial construction of the penalty provisions in crimes involving property. It is of course said that Article 2206 of the Civil Code merely sets the minimum civil liability for death at P3,000, implying that courts are free to grant benefits to the victim‘s heirs upwards of that minimum. This is true but the Court‘s decisions were not in the nature of mere suggestions regarding how the courts below are to exercise their discretions when awarding such benefit. The Court has actually been raising the minimum civil liability for death. Proof of this is that when the trial court or the CA orders the payment of only P50,000 to the victim‘s heirs, an amount already well above the minimum of P3,000 set by law, the Court would readily find the order erroneous and raise the award to P75,000. Some would say that Article 2206 of the Civil Code merely governs civil indemnity whereas Article 315 of the Revised Penal Code on penalties for estafa governs criminal liability, implying that the latter is quite different. But the Civil Code stands on the same footing as the Revised Penal Code in terms of force and effect. One is not superior to the other. The point is that

prudent judicial construction works equally on both codes. In any event, the rule is that in case of doubt the provisions of the Revised Penal Code are to be construed in favor of the accused. What has happened, however, is that the Court has beginning in 1964 construed the minimum amount set in Article 2206 as subject to adjustment to cope with inflation although this worked against the accused in murder and homicide cases. The Court has not come around to give the same construction to the inflation–affected penalty provisions of Article 315 of the Revised Penal Code which would be favorable to him. Incidentally, it is not the severity of the penalty written in the law that the Court has to adjust in order to compensate for inflation but the amount of the fraud or the damage that was proved at the trial. For instance, if an offender defrauds another of P20,000 worth of jewelry items today and he is found guilty, the trial court could make a finding that he had committed fraud in that amount. During sentencing, however, it would just determine, applying the P1 to P100 equation stated above, that such P20,000 is the equivalent of P200 in the economy of the 1930 table of penalties. The court would then apply the penalty provided by law for such reduced amount: 4 months and 1 day to 6 months. It would have been that simple. It is pointed out that the Court‘s remedy in Corpuz‘s and similar cases lies in Article 5 of the Revised Penal Code, the pertinent portion of which provides:chanRoblesvirtualLawlibrary In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of clearly excessive penalty, taking into consideration the degree of malice and injury caused by the offense.55 But the above applies to a specific case before the court that tried it where, ―taking into consideration the degree of malice and injury caused by the offense,‖56 the penalty to be imposed on the accused appears to be excessive. This is best exemplified in a case where the trial court regarded as excessive the lawful penalty it imposed on a father and his son who stole 10 tender coconut fruits from a plantation solely for the family‘s consumption.57 Here, however, the penalty has become excessive, not because of the unusual circumstances of Corpuz‘s case but because the penalty has become grossly iniquitous through time, affecting not just Corpuz but all those charged with crimes the penalties for which depend on the value of money or property involved. It is said that this decision would cause numerous difficulties one of which is that the Court does not have the means for ascertaining the purchasing power of the peso at any given time. But it has the means. The Philippine Statistical Authority (PSA), formerly the National Statistics Office is the ―highest policy making body on statistical matters.‖58 It regularly gathers from the market place the average prices of a basket of consumer items like rice, sugar, fish, meat, school supplies, and other products.59 The PSA then determines based on these the purchasing power of the peso in a given year in relation to other years. ―[O]nce the data generated by the PSA staff is approved and released by the National Statistician, it is deemed official and controlling statistics of the government.‖60 It is the PSA that provided the official finding that the P1 in 1949 is the equivalent of about P100 in 2013.61 This information is used by government planners, international rating agencies, economists, researchers, businessmen, academicians, and students. The rules allow the Court to take judicial notice of this fact.62

The OSG claims that there are many ways of determining the present value of money, not just through its purchasing power as the PSA determines. This may be true but it is presumed that the legislature intended the term ―value‖ in reference to money based on how money is commonly understood, not on how it might be understood by theoreticians or moralists. Everyone knows that the value of money of any amount depends on what it can buy—its purchasing power. People do not earn and keep money for its own sake. Another concern is that if the Court adjusts the penalty to cope with inflation, such adjustments may have unintended effects on other crimes where the penalties depend on the value of the damage caused or the property unlawfully taken. Any adjustment of penalty in Corpuz would of course directly affect most of these crimes. That is inevitable if justice is to be served in those other cases as well since the same reasoning applies to them. For instance, if a poor woman steals four small cans of corned beef from the supermarket worth P280, which would be only P2.80 in 1932, she will be jailed for 4 years and 2 months maximum. If a poor employee pockets P250 in government money entrusted to him, which would be only P2.50 in 1932, he will be jailed for 10 years maximum. If one armed with a knife but commits no violence or intimidation robs a public building by forcibly opening a window and stealing two brooms worth P300, which would be only P3.00 in 1932, he will be jailed for a maximum of 20 years. The absurdity in the literal application of the 1932 penalties equally applies to these crimes. The uniform adjustment in the base amounts using the PSA formula of P1 to P100 will maintain uniform levels of legislative indignation or outrage over the wrongs committed in these crimes. The harshness of the incremental penalty of one year imprisonment for every P10,000.00 would be obviated since the adjustment would make that one year imprisonment for every P1,000,000.00 illegally taken, which would be quite reasonable already. For this reason, no distortion can ever result in the application of the decision in similar cases. To repeat, from this dissent‘s point of view, it is the amount of money or value of the thing defrauded, taken, malversed, or damaged that undergoes adjustment or correction resulting from a realistic appreciation of the facts of the case. The law is not amended or changed. Finally, there is concern that if this dissent were to be adopted, the same would result in the lowering of the penalties that courts have these past years been meting out for crimes involving property. It is pointed out that the ruling fails to take into account its effect on the victims. But the dissent is not advocating the lowering of the penalties for those crimes; it merely seeks the restoration of the correct penalties. The adjustments sought would merely compensate for inflation in order to accomplice what the legislature intends regarding those crimes. The victims of crimes today are not entitled to retributions that are harsher than what the law provides. They have no right to exact more blood than the victims of yesterday. For all the above reasons, I vote to AFFIRM Lito Corpuz‘s conviction with MODIFICATION of the indeterminate penalty to 2 months of arresto mayor, as minimum, to 1 year and 8 months of prision correccional, as maximum, entitling him to probation under the ruling laid down in Colinares v. People.63

Endnotes:

1

Docketed as Criminal Case 665–91.

2

Rollo, p. 52.

3

Penned by Associate Justice Estela M. Perlas–Bernabe (now a member of the Court) and concurred in by Associate Justices Lucas P. Bersamin (now also a member of the Court) and Rodrigo V. Cosico. 4

Rollo, p. 40.

5

An Act Revising The Penal Code and Other Penal Laws [REVISED PENAL CODE], Act 3815 (1932). 6

As of 2014, 6509 people have been convicted of and are serving sentence for estafa, qualified theft, theft, robbery, arson, and malicious mischief. Out of this population, 4480 are slated to spend half a decade or more in prison. (Nora Corazon T. Padiernos, Chief of Planning and Management Division, Bureau of Corrections, Statistics on Crimes Against Property, February 14, 2014) These people are just some of those who would have been affected by this decision. There is an overwhelming number of detainees around the country with similar fates. Manila City Jail alone has 630 men in detention for robbery and 249 for theft. (Manila City Jail, February 2014) To say that they are living in cramped quarters is a great understatement. See Maria Luisa Isabel L. Rosales, Cruel Detentions: Subhuman Prison Conditions – A Form of Cruel and Unusual Punishment, 54 Ateneo L.J. 568 (2009). 7

The Court also invited the Dean and some professors of the University of the Philippines School of Economics and the President of the Philippine Judges Association to submit their views but they opted not to. 8

Corpuz v. People of the Philippines (Minute Resolution), G.R. No. 180016, February 25, 2014, p. 382. 9

Office of the Solicitor General, Oral Arguments, TSN.

10

See Gelig v. People, G.R. No. 173150, July 28, 2010, 626 SCRA 48, 49; People v. Laguerta, 398 Phil. 370, 375 (2000), citing People v. Balacano, 391 Phil. 509, 525–526 (2000). 11

Dean Sedfrey M. Candelaria, Comment, p. 3 (September 30, 2013).

12

65 Phil. 56 (1937).

13

Id. at 88.

14

478 Phil. 573 (2004).

15

Id. at 580.

16

487 Phil. 531 (2004).

17

The term used in the REVISED PENAL CODE, Art. 315.

18

Id., Arts. 299 and 302.

19

Id., Arts. 309 and 310.

20

Id., Art. 328.

21

1 cavan is equivalent to 25 gantas (See Barreto v. Reyes, 10 Phil. 489, 491 [1908]). A ganta of rice is approximately 2.5 kilos when computed at 3 quarts to a ganta. (See United Nations. Department of Economic and Social Affairs, Statistical Office of the United Nations, World Weights and Measures, Handbook for Statisticians, Statistical Papers, Series M No. 21 Revision 1 [ST/STAT/SER.M/21/rev.1] New York: United Nations [1966]); Wordnik, Ganta available at http://www.wordnik.com/words/ganta (last accessed April 23, 2012). 22

Updates on Palay, Rice, and Corn Prices, Vol. 4, No. 34 (August 2012), available at http://www.bas.gov.ph/?ids=amsad_prices. 23

Carmen N. Ericta, OIC National Statistician, Philippine Statistics Authority, SUBJECT: Update on the Value of the Present Day Peso as Compared to its Prevailing Value in 1932 (February 10, 2014). 24

Id., citing Bangko Sentral ng Pilipinas (formerly known as Central Bank of the Philippines), Statistical Bulletin, Vol. IX, No. 4. 25

134 Phil. 453 (1968).

26

Dean Jose Manuel I. Diokno, Comment (September 21, 2013).

27

―Section 5 of the Revised Penal Code x x x violates the bedrock principle of a democratic and republican government x x x [and] may outrightly be struck down as unconstitutional in the present petition by the power of judicial review. x x x Article 39 x x x must be struck down as unconstitutional for its imposition of a cruel punishment that has long been outdated by currency devaluation. Thus, the condition for the exercise of the power of judicial review is that the questionable statute must be closely intertwined with the principal issue of the case, that is the disproportionateness of the penalty imposed based on a devalued currency. x x x Thus, it is imperative for this Supreme Court to declare through its power of judicial review that these statutory provisions are unconstitutional.‖ (Professor Alfredo F. Tadiar, Constitutional Challenge in the Sentencing Process, pp. 14–16, August 16, 2013). 28

Prof. Tadiar agreed to this statement.

29

Angola Toothbrush available at http://www.ebay.ph/itm/ANGOLA–Toothbrush– /221195152522?pt=LH_DefaultDomain_211&hash=item3380422c8a (last accessed March 6, 2014). 30

Taupe Lipstick available at http://www.ebay.ph/itm/taupe–lipstick– /271167294212?pt=LH_Default Domain_211&hash=item3f22d48b04 (last accessed March 6, 2014). 31

Authentic Brand New Old Navy Slippers available at http://www.ebay.ph/itm/Authentic– Brand–New–OLD–NAVY–Womens–Lippers–Size–7–Color–White– /261178377863?pt=LH_DefaultDomain_211&hash= item3ccf71c687 (last accessed March 6,

2014). 32

Auth Philip Stein Large Black Calfskin Strap Brandnew available at http://www.ebay.ph/itm/AUTH–Philip–Stein–Large–Black–Calfskin–Strap–Brand–New– /261176803770?pt=LH_DefaultDomain_211&hash= item3ccf59c1ba (last accessed March 6, 2014). 33

Authentic Louis Vuitton Lumineuse available at http://www.ebay.ph/itm/BNEW–Authentic– Louis–Vuitton–LV–Lumineuse–PM–Aube– 140923515015?pt=LH_DefaultDomain_211&hash=item20cfb23087 (last accessed March 6, 2014). 34

REVISED PENAL CODE, Art. 133.

35

Id., Art.153.

36

Id., Art. 174.

37

Id., Art. 249.

38

Id., Art. 256.

39

People v. Bayon, G.R. No. 168627, July 2, 2010, 622 SCRA 702.

40

People v. Solangon, 563 Phil. 316 (2007).

41

Office of the Solicitor General, Supplemental Comment (August 22, 2013); Senate President, Memorandum (September 26, 2013); and Speaker of the House of Representatives, Memorandum (October 21, 2013). 42

Mario L. Bautista, Compliance 2 (March 12, 2014).

43

―Applied to the present case, while Article 315 of the Revised Penal Code appears on its face as constitutionally valid, the manner by which it is applied by the Court of Appeals to petitioner‘s case will result into an unreasonable consequence for the petitioner. Instead of being qualified for probation based on an interpretation that takes into account adjustment for inflation, petitioner would be made to suffer the penalty of from four (4) years and two (2) months as minimum to fifteen (15) years as maximum. This interpretation is plainly discriminatory, unreasonable and oppressive. x x x The mechanism suggested by the undersigned through judicial interpretation is not antithetical to the established rule that this Court in the exercise of the power of judicial review cannot encroach upon the power of the Legislature.‖ (Dean Sedfrey M. Candelaria, Comment, pp. 4, 11–12 [September 30, 2013]). ―It is well settled that a court may consider the spirit and reason of a statute, and even resort to extrinsic aids, when its literal application would lead to absurdity, contradiction, impossibility, injustice, or would defeat the clear purpose of the law makers. x x x This Court, therefore, can go outside the four corners of the law to give it meaning.‖ (Dean Jose Manuel I. Diokno, Free Legal Assistance Group, De La Salle University College of Law, Comment, p. 3 [September 21, 2013]). 44

An Act to Ordain and Institute the Civil Code of the Philippines, Republic Act 386, Art. 2206

(1950). 45

Id., Art. 2206.

46

M. Ruiz Highway Transit, Inc. v. Court of Appeals, 120 Phil. 102, 106 (1964).

47

People v. Pantoja, supra note 25, at 458.

48

People v. Dela Fuente, 211 Phil. 650, 656 (1983).

49

Supreme Court of the Philippines, En Banc, Minutes (August 30, 1990).

50

People v. Anod, G.R. No. 186420, August 25, 2009, 597 SCRA 205, 213; People v. Tubongbanua, 532 Phil. 434, 454 (2006). 51

Justice Jose C. Vitug, 4 Civil Law, 2nd ed. 2006.

52

Supra note 25.

53

Id. at 457–458.

54

Id. at 458.

55

REVISED PENAL CODE, Art. 5.

56

Id.

57

People v. Montano and Cabagsang, 57 Phil. 598 (1932); People v. Canja, 86 Phil. 518 (1950), (see Dissenting Opinion of J. Montemayor, pp. 522–523). 58

Arsenio M. Balisacan, Socioeconomic Planning Secretary and Director–General, National Economic and Development Authority (April 23, 2014). 59

National Statistics Office, Consumer Price Index Primer available at http://www.census.gov.ph/old/data/technotes/Primer%20on%20Consumer%20Price%20Index.p df (last accessed March 21, 2014); Philippine Satistics Authority, Consumer Price Index for Bottom 30% Income Households , Reference No. 2014–005 (January 30, 2014). 60

Balisacan, supra note 58.

61

Ericta, supra note 23.

62

Section 1, Rule 129 of the Rules of Court provides that a court shall take judicial notice, without the introduction of evidence, of the official acts of government. It may also take judicial notice as provided in Section 2 of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. Indeed, the Court has in the past consistently taken note of and acted on the inflationary movement of the purchasing power of the peso. 63

G.R. No. 182748, December 13, 2011, 662 SCRA 266.

CONCURRING AND DISSENTING OPINION “Since we cannot change reality, let us change the eyes which see reality.” Nikos Kazantzakis1

LEONEN, J.:

I concur with the ponencia of Justice Diosdado M. Peralta in affirming the conviction of Lito Corpuz. However, I dissent on the penalty imposed by the majority. I do not agree that it is judicial legislation for us to reconsider the range of penalties created by Congress in 1932. The range of penalties for the crime of estafa should be recomputed based on present value. Our duty is to intepret the law. It is a duty reposed on us by the Constitution. We provide meaning to law‘s language and make laws written in a different historical context relevant to present reality.2 The meanings of the text of the law limited by the facts presented in the cases that come to us are not arbitrarily determined. We arrive at such meanings as a collegial court aware that we should keep faith in the spirit that the laws have been promulgated. Our ideal should be that we can reflect the political consensus contained in the words approved by Congress and the President but always framed by the fundamental principles and values of our Constitution. Political consensus is not independent of reality. It is there to address that reality. My sense of the law‘s spirit is that it is always motivated by what is relevant and what is just under the circumstances. Viewed in this way, I must dissent in the penalty imposed upon the accused. The pecuniary values that provided the basis for the range of penalties for the crime of estafa (swindling) were the values in 1932. It is clear that the gravity of a crime where someone was defrauded of fifty pesos (?50.00) of property in 1932 is not the same as the gravity of the same offense for property worth fifty pesos (?50.00) in 2014. The purchasing power of the peso has significantly changed after eight decades, and it is time that we interpret the law the way it should be: to reflect the relative range of values it had when it was promulgated. In doing so, we are not rewriting the law, just construing what it actually means. Of course, every interpretation we make on any provision of law occassioned by actual cases will have their own share of difficulties when implemented. This is true when we declare law relied upon by many as unconstitutional, or interpret the provisions of a tax code, or even when we clarify the requirements prescribed by the General Accounting and Auditing Manual (GAAM). We have always, however, proceeded with the right interpretation and dealt with the difficulties accordingly.

Definitely, an interpretation of a legal provision more beneficial to an accused or a person who is convicted will have a retroactive effect. This should be because such interpretation is corrective in nature. This should not present extremely debilitating difficulties, and we do not have to have special rules. The convicted prisoner could simply file habeas corpus as a post–conviction remedy whenever he or she would have served more than what would be required based on our new interpretations. It is also possible for the Department of Justice‘s Bureau of Corrections and Parole and Probation Administration to adopt its own guidelines on the release of prisoners. This difficulty is not insurmountable. I disagree that it will be difficult to find the correct present value for the amounts involved. In Heirs of the Spouses Tria v. Land Bank of the Philippines3and Secretary of the Department of Public Works and Highways v. Spouses Tecson,4 we identified the correct formula in our concurring and dissenting opinions. The formula for present value is known and has been relied upon in the business community. Inflation rates may be discovered using the latest statistics extrapolating for the years when there had been no available values. I agree with the approach of Justice Roberto A. Abad in his dissenting opinion in approximating the value already so that we do not need to get unneccessarily entangled in the niceties of the science and art of determining inflation rates. Even the inflation rate should not present an extraordinarily insurmountable problem even if it should be computed from 1932. Inflation is only the change in price of the same index from one year to the next. Price index is the ―measure of the average level of prices,‖5 while inflation is the ―rise in the general level of prices.‖6As long as there is a price index, inflation rate can be derived from comparing one year‘s price index with another year‘s price index. The most commonly used price index is the Consumer Price Index. The Philippines began recording the Consumer Price Index in 1948, together with the creation of the Central Bank of the Philippines.7 However, even before the creation of the Central Bank, the Philippines had been recording other price indices that could be used to approximate inflation and give a more precise picture of the price level in 1930, the year the Revised Penal Code was approved. A sectoral price index can be used to substitute the consumer price index. A dominant sector in the Philippines, agriculture, has a price index which pre–dates World War I and covers the years 1902 until 1946.8 Hence, even before the war, for as long as the index compared with one from another is the same index, an inflation rate can be derived. Law has never been a discipline too autonomous from the other disciplines. The points of view of those that inhabit the world of economics and finance are not strange to lawyers. The eyes through which the law views reality should not be too parochial and too narrow. Our understanding should instead be open enough to allow us to see more by borrowing from other disciplines. Doing so enhances rather than weakens judicial rigor. I am not convinced that a ruling that will affect penalties in other crimes where the gravity is measured in pesos will present difficulties too debilitating so as to amount to being unimplementable. I do not see why courts of law cannot simply adopt the universally acceptable formula for present value. An interpretative methodology for penalties is proposed because of the extraordinary lapse of time from the date of promulgation of the law (1932) to the present. Definitely, we will not be

recomputing the penalties for all statutes. I am of the view that the approach for computing the penalties in this case will only be applicable to statutes that have been promulgated and have not been amended for no less than the past eight decades. The world was very different then. A world war intervened. Four different Constitutions with their corresponding amendments were promulgated and took effect. There are now more types of property than could have been imagined at that time. I hesitate to agree with Justice Carpio‘s approach to declare the incremental penalties as unconstitutional only because it violates the proscription against cruel and unusual punishments. The approach creatively addresses the unjustness of the present situation but does not have the same elegance of principle that is proposed in the dissent of Justice Abad. Both lead to pragmatic results, and I think that between these two possibilities, we should lean on that which is more consistent with the principle of reflecting the spirit of the law when it was promulgated. A decision that re–computes penalties to account for present value should not be seen as a judgment of the achievements of Congress. That this was not its priority is a matter that should not concern us. Congress is an entirely separate and autonomous branch of government, and it would be violative of the constitutional fiat of separation of powers for us to imply that updating penal statutes should have been its priority. Regardless, it is this actual case that confronts us. In my view, adjusting penalties to account for the purchasing power of the peso is entirely within our power. It is not judicial legislation, it is merely interpreting the word ―peso‖ in these range of penalties. It is quintessentially a judicial activity to interpret. We should not default on this duty. We cannot wait another century before a just outcome is to be realized. ACCORDINGLY, I vote to affirm the conviction of the accused. However, I vote that the penalty imposed be two months of arresto mayor as minimum, to one year and eight months of prision correccional, as maximum, in accordance with the computation proposed by Justice Roberto Abad in his dissenting opinion.

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. SERGIO MANZANILLA ET AL., Defendants. SERGIO MANZANILLA, Appellant. A. M. Opisso for Appellant. Acting Attorney-General Tuason for Appellee. SYLLABUS 1. CRIMINAL LAW; INCOMPETENCY OR NEGLIGENCE OF DEFENDANT‘S COUNSEL; NEW TRIAL. — While a new trial is sometimes granted where the incompetency or negligence of defendant‘s counsel in the conduct of the case is so great that defendant‘s rights are prejudiced and he is prevented from presenting his defense, yet it does not necessarily follow from this that a new trial must be granted when such attorney has failed to introduce certain evidence, or his negligence prevented the accused from testifying in court, for such facts are not always a sufficient ground for new trial. 2. D; ROBBERY BY A BAND; ARTICLE 504, PARAGRAPH 2; ARTICLE 81, RULE 1. — Held: That, under the facts in the present case, the crime is that of robbery by a band with illegal detention, which falls under the provisions of article 503, No. 4, of the Penal Code, and while the detention in this case does not come under the provisions of paragraph 3, of the said article, because the persons detained were not held for ransom or deprived of their liberty for more than one day, yet such restraint of liberty is held to constitute unnecessary violence and intimidation, within the meaning of the aforesaid paragraph No. 4. Inasmuch as the herein appellant was the leader of the band formed by him and his coaccused, the penalty next higher to the corresponding penalty must be imposed, as provided in paragraph 2, article 504, of the Penal Code, which is cadena temporal in its medium degree to cadena perpetua. As no modifying circumstances attended the commission of the crime, the penalty mus be imposed in its medium degree, which is cadena temporal, in its maximum degree, in accordance with rule 1 of article 81 of the said Code.

DECISION

ROMUALDEZ, J. :

Seven persons, whose names appear in the information on which this action was initiated, were prosecuted for the crime of robbery by a band. Two of them, Escolastico Manalo and Bernabe de Chavez, were excluded from the information and used as witnesses for the prosecution. The remaining five, who were found guilty of the crime charged after trial, were sentenced, Sergio Manzanilla as the leader of the band, to ten years and one day of presidio mayor, and all the rest to six years, ten months, and one day of presidio mayor, all of them to return jointly and severally to Regino Pavino the sum of one hundred twenty-six pesos (P126) and effects to the value of six pesos (P6), and to Anatolio Villaverde and Julian Romulo the clothing and effects appraised at five (P5) and eleven pesos (P11) respectively, and to pay each one-seventh of the costs. The five accused thus sentenced appealed from this judgment, but the accused, Nicolas Barradas, Francisco Malihan, Luciano Mabilangan, and Luciano Zaragoza withdrew their appeal

during the pendency therof. The accused, Sergio Manzanilla, however, maintained his appeal, but his attorney de oficio states to this court that he is constrained to say, in view of the evidence for the prosecution and the absence of evidence for the defense, that the judgment appealed from must be affirmed. Later on, a motion signed by this appellant, Sergio Manzanilla, was filed in this court, asking for a new trial on the ground: (a) That accused was not called to testify, (b) that the proceeding was without due process of law, (c) that some of his coaccused were used as witnesses for the prosecution, (d) that his attorney was bribed by the accused who were used as witnesses, and (e) that the trial court decided the case without he accused having presented their evidence. The motion is not sworn to and the authenticity of the signature appearing on this motion is doubtful, when compared with the signatures of this appellant shown on page 65 of the "Rollo" and on pages 8, 14, 20, and 122 of the record. The motion does not say what evidence the accused had, which they were prevented from introducing, nor does it allege that such evidence would change the result of the case. The exclusion from the information of the to accuse, who were used as witnesses for the prosecution, was done in accordance with the law. As to the charge of bribery against the attorney, there is not even a prima faccie evidence of such fact. Besides this attorney, Mr. Felix Imperial, from all that appears in these proceedings, does not seem to have conducted himself in an irregular or improper manner, and much less to have acted adversely to the interest of the appellant. The action of the attorney in not introducing any evidence for the defense and in not permitting the accused to testify was within his discretion which he could lawfully exercise, and did exercise, believing undoubtedly that, in doing so, the rights of the accused were better protected. At all events, these facts concerning the attorney do not constitute a ground for a new trial. "Incompetency or negligence of defendant‘s counsel. — A new trial may be granted where the incompetency of counsel is so great that defendant is prejudiced and prevented from fairly presenting his defense, and a new trial sometimes is granted because of some serious error on the part of such attorney in the conduct of the case. But a new trial does not necessarily follow either from the attorney‘s incompetency or his neglect. This latter rule has been applied to the failure of defendant‘s counsel to introduce certain evidence, to his failure to summon witnesses, to failure to except to a ruling or an instruction, to his negligence resulting in defendant‘s failure to make a statement to the court, to submission of the case . . . without argument. . . ." (16 C. J., 1145.) We do not see how the motion for a new trial can be granted. It is, therefore, denied. Considering the cause upon its merits, we find that the facts established beyond doubt are: That the herein appellant, Sergio Manzanilla, led the party formed by these seven accused; that more than three of them were armed, and therefore, they constituted a band, within the meaning of law; that at the order of the said Manzanilla, who was armed with a revolver, the seven accused took up their posts in different places in the Province of Tayabas for the purpose of robbing, as they did in fact rob, about ten travellers, whom they stopped on the highway and took to a nearby forest where they tied them to the trunks of the trees and intimidated them with their

weapons, the accused Sergio Manzanilla having fired four times on one of the victims, named Tomas Villare, when the latter attempted to escape, thereby inflicting a wound on his head which, fortunately, was of a light character; and by this means the accused took the money and effects mentioned in the information and referred to in the beginning of this decision, leaving thereafter the victims tied, as they were, to the trunks of the trees in the craggy ground. As we have stated, none of the accused presented any evidence. The facts above constitute the crime of robbery by a band with illegal detention. As to the appellant, it further appears that the crime is robbery with physical injuries, but this point is not alleged in the information. We find no attenuating or aggravating circumstance in the commission of the crime. The allegation in the information that the crime was committed in an uninhabited place was not sufficiently prove. The crime proven falls under the provisions of article 503, No. 4, of the Penal Code, for while it does not appear that the persons detained were held for ransom or deprived of their liberty for more than one day (which would have made No. 3 of said article applicable), we are of the opinion that such restraint of liberty constitutes the unnecessary violence and intimidation referred to in the aforesaid No. 4 of article 503, the penalty to be imposed in such a case be that of presidio mayor in its medium degree to cadena temporal in its minimum degree had not the crime been, as it was, committed by a band, and the appellant been its leader, as is shown by the evidence. For this reason the penalty next higher to that aforementioned is the penalty to be imposed, in accordance with paragraph 2 of article 504 of the Penal Code, which is cadena temporal in its medium degree to cadena perpetua. No modifying circumstance having attended the commission of the crime, said penalty must be imposed in its medium degree, as provided in rule 1 of article 81 of the said Code, which is cadena temporal in its maximum degree. The judgment appealed from is modified and the appellant sentenced to seventeen years, four months, and one day of cadena temporal, with the accessory penalties provided in article 56 of the Penal Code, to return jointly and severally with the other four accused convicted in this cause to Regino Pavino the sum of one hundred twenty six pesos (P126) and the effects described in the information, the value of which is fixed at six pesos (P6), and to Anatolio Villaverde and Julian Romulo the clothing and effects also described in the information and appraised at five (P5) and eleven (P11) pesos, respectively, and to pay one-seventh of the costs in the first instance, and one-fifth of those in this instance. So ordered. Araullo, C.J., Street, Malcolm, Avancena, Villamor Ostrand, and Johns, JJ., concur.

PEOPLE OF THE PHILIPPINES, G.R. No. 169364 Petitioner, Present: Ynares-Santiago, J. (Chairperson), - versus - Chico-Nazario, Velasco, Jr., Peralta, and Bersamin*, JJ. EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y Promulgated: MEFANIA, Respondents. September 18, 2009 x ---------------------------------------------------------------------------------------- x DECISION YNARES-SANTIAGO, J.: If a man is called to be a street sweeper, he should sweep streets even as Michelangelo painted, or Beethoven composed music, or Shakespeare wrote poetry. He should sweep streets so well that all the hosts of Heaven and Earth will pause to say, here lived a great street sweeper who did his job well. Martin Luther King, Jr. Assailed in this petition for review on certiorari is the July 29, 2005 Order [1] of Branch 11, Davao City Regional Trial Court in Special Civil Case No. 30-500-2004 granting respondents Petition for Certiorari and declaring paragraph 2 of Article 202 of the Revised Penal Code unconstitutional. Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy pursuant to Article 202 (2) of the Revised Penal Code in two separate Informations dated November 18, 2003, docketed as Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003 and raffled to Branch 3 of the Municipal Trial Court in Cities, Davao City. The Informations, read:

That on or about November 14, 2003, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, willfully, unlawfully and feloniously wandered and loitered around San Pedro and Legaspi Streets, this City, without any visible means to support herself nor lawful and justifiable purpose.[2] Article 202 of the Revised Penal Code provides: Art. 202. Vagrants and prostitutes; penalty. The following are vagrants:

1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets without visible means of support; 3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayorin its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court. Instead of submitting their counter-affidavits as directed, respondents filed separate Motions to Quash[3] on the ground that Article 202 (2) is unconstitutional for being vague and overbroad. In an Order[4] dated April 28, 2004, the municipal trial court denied the motions and directed respondents anew to file their respective counter-affidavits. The municipal trial court also declared that the law on vagrancy was enacted pursuant to the States police power and justified by the Latin maxim salus populi est suprem(a) lex, which calls for the subordination of individual benefit to the interest of the greater number, thus: Our law on vagrancy was enacted pursuant to the police power of the State. An authority on police power, Professor Freund describes laconically police power as the power of promoting public welfare by restraining and regulating the use of liberty and property. (Citations omitted). In fact the persons acts and acquisitions are hemmed in by the police power of the state. The justification found in the Latin maxim, salus populi est supreme (sic) lex (the god of the people is the Supreme Law). This calls for the subordination of individual benefit to the interests of the greater number.In the case at bar the affidavit of the arresting police officer, SPO1 JAY PLAZA with Annex A lucidly shows that there

was a prior surveillance conducted in view of the reports that vagrants and prostitutes proliferate in the place where the two accused (among other women) were wandering and in the wee hours of night and soliciting male customer. Thus, on that basis the prosecution should be given a leeway to prove its case. Thus, in the interest of substantial justice, both prosecution and defense must be given their day in Court: the prosecution proof of the crime, and the author thereof; the defense, to show that the acts of the accused in the indictment cant be categorized as a crime.[5] The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1 Jay Plaza, it was stated that there was a prior surveillance conducted on the two accused in an area reported to be frequented by vagrants and prostitutes who solicited sexual favors. Hence, the prosecution should be given the opportunity to prove the crime, and the defense to rebut the evidence. Respondents thus filed an original petition for certiorari and prohibition with the Regional Trial Court of Davao City,[6] directly challenging the constitutionality of the anti-vagrancy law, claiming that the definition of the crime of vagrancy under Article 202 (2), apart from being vague, results as well in an arbitrary identification of violators, since the definition of the crime includes in its coverage persons who are otherwise performing ordinary peaceful acts. They likewise claimed that Article 202 (2) violated the equal protection clause under the Constitution because it discriminates against the poor and unemployed, thus permitting an arbitrary and unreasonable classification. The State, through the Office of the Solicitor General, argued that pursuant to the Courts ruling in Estrada v. Sandiganbayan,[7] the overbreadth and vagueness doctrines apply only to free speech cases and not to penal statutes. It also asserted that Article 202 (2) must be presumed valid and constitutional, since the respondents failed to overcome this presumption. On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition, the dispositive portion of which reads: WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby GRANTED. Paragraph 2 of Article 202 of the Revised Penal Code is hereby declared unconstitutional and the Order of the court a quo, dated April 28, 2004, denying the petitioners Motion to Quash is set aside and the said court is ordered to dismiss the subject criminal cases against the petitioners pending before it. SO ORDERED.[8]

In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague and it violated the equal protection clause. It held that the void for vagueness doctrine is equally applicable

in

testing

the

validity

of

penal

statutes. Citing Papachristou

v.

City

of

Jacksonville,[9] where an anti vagrancy ordinance was struck down as unconstitutional by the Supreme Court of the United States, the trial court ruled: The U.S. Supreme Courts justifications for striking down the Jacksonville Vagrancy Ordinance are equally applicable to paragraph 2 of Article 202 of the Revised Penal Code. Indeed, to authorize a police officer to arrest a person for being found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets without visible means of support offers too wide a latitude for arbitrary determinations as to who should be arrested and who should not. Loitering about and wandering have become national pastimes particularly in these times of recession when there are many who are without visible means of support not by reason of choice but by force of circumstance as borne out by the high unemployment rate in the entire country. To authorize law enforcement authorities to arrest someone for nearly no other reason than the fact that he cannot find gainful employment would indeed be adding insult to injury.[10] On its pronouncement that Article 202 (2) violated the equal protection clause of the Constitution, the trial court declared: The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present runs afoul of the equal protection clause of the constitution as it offers no reasonable classification between those covered by the law and those who are not. Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts upon one individual a more severe penalty than is imposed upon another in like case offending. Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the Revised Penal Code offers no guidelines or any other reasonable indicators to differentiate those who have no visible means of support by force of circumstance and those who choose to loiter about and bum around, who are the proper subjects of vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality.[11] Hence, this petition for review on certiorari raising the sole issue of:

WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DECLARING UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE[12] Petitioner argues that every statute is presumed valid and all reasonable doubts should be resolved in favor of its constitutionality; that, citing Romualdez v. Sandiganbayan,[13] the overbreadth and vagueness doctrines have special application to free-speech cases only and are not appropriate for testing the validity of penal statutes; that respondents failed to overcome the presumed validity of the statute, failing to prove that it was vague under the standards set out by the Courts; and that the State may regulate individual conduct for the promotion of public welfare in the exercise of its police power. On the other hand, respondents argue against the limited application of the overbreadth and vagueness doctrines. They insist that Article 202 (2) on its face violates the constitutionallyguaranteed rights to due process and the equal protection of the laws; that the due process vagueness standard, as distinguished from the free speech vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional and void on its face; and that the presumption of constitutionality was adequately overthrown. The Court finds for petitioner. The power to define crimes and prescribe their corresponding penalties is legislative in nature and inherent in the sovereign power of the state to maintain social order as an aspect of police power. The legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no constitutional rights have been abridged.[14]However, in exercising its power to declare what acts constitute a crime, the legislature must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid.[15] This requirement has come to be known as the void-for-vagueness doctrine which states that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.[16] In Spouses Romualdez v. COMELEC,[17] the Court recognized the application of the void-for-vagueness doctrine to criminal statutes in appropriate cases. The Court therein held:

At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a facial challenge. An appropriate as applied challenge in the instant Petition should be limited only to Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189 the provisions upon which petitioners are charged. An expanded examination of the law covering provisions which are alien to petitioners case would be antagonistic to the rudiment that for judicial review to be exercised, there must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural or anticipatory.[18] The first statute punishing vagrancy Act No. 519 was modeled after American vagrancy statutes and passed by the Philippine Commission in 1902. The Penal Code of Spain of 1870 which was in force in this country up to December 31, 1931 did not contain a provision on vagrancy.[19] While historically an Anglo-American concept of crime prevention, the law on vagrancy was included by the Philippine legislature as a permanent feature of the Revised Penal Code in Article 202 thereof which, to repeat, provides: ART. 202. Vagrants and prostitutes; penalty. The following are vagrants: 1. Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling; 2. Any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support;

3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who habitually associate with prostitutes; 4. Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose; 5. Prostitutes. For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct, are deemed to be prostitutes. Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayorin its medium period to prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the discretion of the court.

In the instant case, the assailed provision is paragraph (2), which defines a vagrant as any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support. This provision was based on the second clause of Section 1 of Act No. 519 which defined vagrant as every person found loitering about saloons or dramshops or gambling houses, or tramping or straying through the country without visible means of support.The second clause was essentially retained with the modification that the places under which the offense might be committed is now expressed in general terms public or semi-public places. The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support mainly from the U.S. Supreme Courts opinion in the Papachristou v. City of Jacksonville[20] case, which in essence declares: Living under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids. Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S. 453. Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending conduct. See Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy Co., 274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed. Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372 U. S. 29; United States v. Petrillo, 332 U. S. 1. The poor among us, the minorities, the average householder, are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U. S. 91; Boyce Motor Lines, Inc. v. United States, supra. The Jacksonville ordinance makes criminal activities which, by modern standards, are normally innocent. Nightwalking is one. Florida construes the ordinance not to make criminal one night's wandering, Johnson v. State, 202 So.2d at 855, only the habitual wanderer or, as the ordinance describes it, common night walkers. We know, however, from experience that sleepless people often walk at night, perhaps hopeful that sleep-inducing relaxation will result. Luis Munoz-Marin, former Governor of Puerto Rico, commented once that loafing was a national virtue in his Commonwealth, and that it should be encouraged. It is, however, a crime in Jacksonville.

xxxx Persons wandering or strolling from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification without any lawful purpose or object may be a trap for innocent acts. Persons neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served would literally embrace many members of golf clubs and city clubs. Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be casing a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of no concern to the police. Yet it may, of course, be the setting for numerous crimes. The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been, in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather than hushed, suffocating silence. xxxx Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted may be punished for no more than vindicating affronts to police authority: The common ground which brings such a motley assortment of human troubles before the magistrates in vagrancytype proceedings is the procedural laxity which permits 'conviction' for almost any kind of conduct and the existence of the House of Correction as an easy and convenient dumping-ground for problems that appear to have no other immediate solution. Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 631. xxxx Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering punishment by analogy. Such crimes, though long common in Russia, are not compatible with our constitutional system. xxxx A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is sold, or who are supported by their wives or who

look suspicious to the police are to become future criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy standards -that crime is being nipped in the bud -- is too extravagant to deserve extended treatment. Of course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that evenhanded administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.[21] The

underlying

principles

in Papachristou are

that:

1)

the

assailed Jacksonville ordinance fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute; and 2) it encourages or promotes opportunities for the application of discriminatory law enforcement. The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202 (2) in this case, fails to give fair notice of what constitutes forbidden conduct, finds no application here because under our legal system, ignorance of the law excuses no one from compliance therewith.[22] This principle is of Spanish origin, and we adopted it to govern and limit legal conduct in this jurisdiction. Under American law, ignorance of the law is merely a traditional rule that admits of exceptions.[23] Moreover, the Jacksonville ordinance was declared unconstitutional on account of specific provisions thereof, which are not found in Article 202 (2). The ordinance (Jacksonville Ordinance Code 257) provided, as follows: Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses. Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional, because such activities or habits as nightwalking, wandering or strolling around without

any lawful purpose or object, habitual loafing, habitual spending of time at places where alcoholic beverages are sold or served, and living upon the earnings of wives or minor children, which are otherwise common and normal, were declared illegal. But these are specific acts or activities not found in Article 202 (2). The closest to Article 202 (2) any person found loitering about public or semi-public buildings or places, or tramping or wandering about the country or the streets without visible means of support from the Jacksonville ordinance, would be persons wandering or strolling around from place to place without any lawful purpose or object. But these two acts are still not the same: Article 202 (2) is qualified by without visible means of support while the Jacksonville ordinance prohibits wandering or strolling without any lawful purpose or object, which was held by the U.S. Supreme Court to constitute a trap for innocent acts. Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.[24] Thus, as with any other act or offense, the requirement of probable cause provides an acceptable limit on police or executive authority that may otherwise be abused in relation to the search or arrest of persons found

to

be

violating

Article

202

(2). The

fear

exhibited

by

the

respondents,

echoing Jacksonville, that unfettered discretion is placed in the hands of the police to make an arrest or search, is therefore assuaged by the constitutional requirement of probable cause, which is one less than certainty or proof, but more than suspicion or possibility.[25] Evidently, the requirement of probable cause cannot be done away with arbitrarily without pain of punishment, for, absent this requirement, the authorities are necessarily guilty of abuse. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith of the peace officers making the arrest.[26] The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects. The constitutional provision sheathes the private individual

with an impenetrable armor against unreasonable searches and seizures. It protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint, and prevents him from being irreversibly cut off from that domestic security which renders the lives of the most unhappy in some measure agreeable.[27] As applied to the instant case, it appears that the police authorities have been conducting previous surveillance operations on respondents prior to their arrest. On the surface, this satisfies the probable cause requirement under our Constitution. For this reason, we are not moved by respondents trepidation that Article 202 (2) could have been a source of police abuse in their case. Since the Revised Penal Code took effect in 1932, no challenge has ever been made upon the constitutionality of Article 202 except now. Instead, throughout the years, we have witnessed the streets and parks become dangerous and unsafe, a haven for beggars, harassing watch-your-car boys, petty thieves and robbers, pickpockets, swindlers, gangs, prostitutes, and individuals performing acts that go beyond decency and morality, if not basic humanity. The streets and parks have become the training ground for petty offenders who graduate into hardened and battle-scarred criminals. Everyday, the news is rife with reports of innocent and hardworking people being robbed, swindled, harassed or mauled if not killed by the scourge of the streets. Blue collar workers are robbed straight from withdrawing hard-earned money from the ATMs (automated teller machines); students are held up for having to use and thus exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-seeking gangs; innocent passers-by are stabbed to death by rowdy drunken men walking the streets; fair-looking or pretty women are stalked and harassed, if not abducted, raped and then killed; robbers, thieves, pickpockets and snatchers case streets and parks for possible victims; the old are swindled of their life savings by conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester and panhandle pedestrians and commuters, posing a health threat and putting law-abiding drivers and citizens at risk of running them over. All these happen on the streets and in public places, day or night. The streets must be protected. Our people should never dread having to ply them each day, or else we can never say that we have performed our task to our brothers and sisters. We must rid the streets of the scourge of humanity, and restore order, peace, civility, decency and morality in them.

This is exactly why we have public order laws, to which Article 202 (2) belongs. These laws were crafted to maintain minimum standards of decency, morality and civility in human society. These laws may be traced all the way back to ancient times, and today, they have also come to be associated with the struggle to improve the citizens quality of life, which is guaranteed by our Constitution.[28] Civilly, they are covered by the abuse of rights doctrine embodied in the preliminary articles of the Civil Code concerning Human Relations, to the end, in part, that any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.[29] This provision is, together with the succeeding articles on human relations, intended to embody certain basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order.[30] In civil law, for example, the summary remedy of ejectment is intended to prevent criminal disorder and breaches of the peace and to discourage those who, believing themselves entitled to the possession of the property, resort to force rather than to some appropriate action in court to assert their claims.[31] Any private person may abate a public nuisance which is specially injurious to him by removing, or if necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.[32] Criminally, public order laws encompass a whole range of acts from public indecencies and immoralities, to public nuisances, to disorderly conduct. The acts punished are made illegal by their offensiveness to societys basic sensibilities and their adverse effect on the quality of life of the people of society. For example, the issuance or making of a bouncing check is deemed a public nuisance, a crime against public order that must be abated.[33] As a matter of public policy, the failure to turn over the proceeds of the sale of the goods covered by a trust receipt or to return said goods, if not sold, is a public nuisance to be abated by the imposition of penal sanctions.[34] Thus, public nuisances must be abated because they have the effect of interfering with the comfortable enjoyment of life or property by members of a community. Article 202 (2) does not violate the equal protection clause; neither does it discriminate against the poor and the unemployed. Offenders of public order laws are punished not for their status, as for being poor or unemployed, but for conducting themselves under such circumstances as to endanger the public peace or cause alarm and apprehension in the community. Being poor or unemployed is not a license or a justification to act indecently or to engage in immoral conduct.

Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a public order crime which punishes persons for conducting themselves, at a certain place and time which orderly society finds unusual, under such conditions that are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society, as would engender a justifiable concern for the safety and well-being of members of the community. Instead of taking an active position declaring public order laws unconstitutional, the State should train its eye on their effective implementation, because it is in this area that the Court perceives difficulties. Red light districts abound, gangs work the streets in the wee hours of the morning, dangerous robbers and thieves ply their trade in the trains stations, drunken men terrorize law-abiding citizens late at night and urinate on otherwise decent corners of our streets. Rugby-sniffing individuals crowd our national parks and busy intersections. Prostitutes wait for customers by the roadside all around the metropolis, some even venture in bars and restaurants. Drug-crazed men loiter around dark avenues waiting to pounce on helpless citizens. Dangerous groups wander around, casing homes and establishments for their next hit. The streets must be made safe once more. Though a mans house is his castle,[35] outside on the streets, the king is fair game. The dangerous streets must surrender to orderly society.

Finally, we agree with the position of the State that first and foremost, Article 202 (2) should be presumed valid and constitutional. When confronted with a constitutional question, it is elementary that every court must approach it with grave care and considerable caution bearing in mind that every statute is presumed valid and every reasonable doubt should be resolved in favor of its constitutionality.[36] The policy of our courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain, this presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied, crafted and determined to be in accordance with the fundamental law before it was finally enacted.[37]

It must not be forgotten that police power is an inherent attribute of sovereignty. It has been defined as the power vested by the Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public health, public safety, public morals, and the general welfare.[38] As an obvious police power measure, Article 202 (2) must therefore be viewed in a constitutional light. WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional Trial Court of Davao City in Special Civil Case No. 30-500-2004 declaring Article 202, paragraph 2 of the Revised Penal Code UNCONSTITUTIONAL is REVERSED and SET ASIDE. Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus continue. No costs. SO ORDERED.

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, Petitioners, v. PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING CORPORATION, Respondents.

SYLLABUS

DAVIDE, JR., J., separate opinion:chanrob1es virtual 1aw library 1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; PRINCIPAL CAUSE OF ACTION IN CASE AT BAR ONE FOR DECLARATORY RELIEF. — It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court‘s original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional — for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy — the challenged ordinances enacted by the Sangguniang Panlungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State‘s national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. 2. ID.; ID.; PROHIBITION; ESTABLISHED POLICY RELATIVE TO HIERARCHY OF COURTS NOT OBSERVED IN FILING OF PETITION IN CASE AT BAR. — Assuming arguendo that the case is one for prohibition, then, under this Court‘s established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People v. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago v. Vasquez (217 SCRA 633 1993]). 3. STATUTORY CONSTRUCTION; PRESIDENTIAL DECREE NO. 1869 NOT REPEALED PRO TANTO BY LOCAL GOVERNMENT CODE. — The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod‘s express powers conferred by Section 458paragraph (a)subparagraphs (1)-(V), (3)-(ii), and (4)-(i), (iv), and (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof. . . . . The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR‘S general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned.I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. 4. CONTRAVENTION OF LAW NOT NECESSARILY A CONTRAVENTION OF THE CONSTITUTION; ORDINANCES IN CASE AT BAR RECONCILED WITH PRESIDENTIAL DECREE NO. 1869. — The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A

contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. DECISION

CRUZ, J.:

There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro City. Civic organizations angrily denounced the project, The religious elements echoed and objection and so did the women‘s groups and the youth. Demonstrations were led by the mayor and the city legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the city. The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation Inc., one of the herein private respondents, renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On December 7, 1992, it enacted Ordinance No. 3353 reading as follows:chanrob1es virtual 1aw library ORDINANCE NO. 3353 AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO. BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session assembled that:chanrob1es virtual 1aw library SECTION 1. That pursuant to the policy of the city banning the operation of casino within its territorial jurisdiction, no business permit shall be issued to any person, partnership or corporation for the operation of casino within the city limits. SECTION 2. That it shall be violation of existing business permit by any persons, partnership or corporation to use its business establishment or portion thereof, or allow the use thereof by others for casino operation and other gambling activities. SECTION 3. PENALTIES. — Any violation of such existing business permit as defined in the preceding section shall suffer the following penalties, to wit:chanrob1es virtual 1aw library a) Suspension of the business permit for sixty (60) days for the first offense and a fine of P1,000.00/day

b) Suspension of the business permit for Six (6) months for the second offense, and a fine of P3,000.00/day c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third and subsequent offenses. SECTION 4. This Ordinance shall take effect ten (10) days from publication thereof. Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:chanrob1es virtual 1aw library ORDINANCE NO. 3375-93 AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR VIOLATION THEREFOR. WHEREAS, the City Council established a policy as early as 1990 against CASINO under its Resolution No. 2295; WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating its policy against the establishment of CASINO; WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the issuance of Business Permit and to cancel existing Business Permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of CASINO. WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of 1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local Government Code, the City Council as the Legislative Body shall enact measure to suppress any activity inimical to public morals and general welfare of the people and/or regulated or prohibit such activity pertaining to amusement or entertainment in order to protect social and moral welfare of the community; NOW THEREFORE, BE IT ORDAINED by the City Council in session duly assembled that:chanrob1es virtual 1aw library SECTION 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited. SECTION 2. Any violation of this Ordinance shall be subject to the following penalties:chanrob1es virtual 1aw library a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and closure thereof; b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of P5,000.00 or both at the discretion of the court against the manager, supervisor,

and/or any person responsible in the establishment, conduct and maintenance of gambling CASINO. SECTION 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of general circulation. Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. Their challenge invalid and issued the writ prayed for to prohibit their enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2 Cagayan de Oro City and its mayor are now before us in this petition for review under Rule of Court. 3 They aver that the respondent Court of Appeals erred in holding that:chanrob1es virtual 1aw library 1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have the power and authority to prohibit the establishment and operation of the PAGCOR gambling casino within the City‘s territorial limits. 2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par. (1) - (v) of R.A. 7160 could only mean "illegal gambling."cralaw virtua1aw library 3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point. 4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are therefore invalid on that point. 5. The questioned Ordinances are not reasonable, not consonant with the general powers and purposes of the instrumentality concerned and inconsistent with the laws or policy of the State. 6. It had no option but to follow the ruling in the case of Basco, Et. Al. v. PAGCOR, G.R. No. 91649, May 14, 1991, 195 SCRA 53 in disposing of the issues presented in this present case. PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines. In Basco v. Philippine Amusements and Gambling Corporation, 4 this Court sustained the constitutionality of the decree and even cited the benefits of the entity to the national economy as the third highest revenue-earner in the government, next only to the BIR and the Bureau of Customs.chanroblesvirtuallawlibrary Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause now embodied in Section 16 as follows:chanrob1es virtual 1aw library SECTION 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and

technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. In addition, Section 458 of the said Code specifically declares that:chanrob1es virtual 1aw library SECTION 458. Powers, Duties, Functions and Compensation. — (1) The Sangguniang Panlungsod, as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper exercise of the corporate powers of the city as provided for under Section 22 of this Code, and shall:chanrob1es virtual 1aw library (1) Approve ordinances and pass resolutions necessary for an efficient and effective city government, and in this connection, shall:chanrob1es virtual 1aw library x

x

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(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of houses of ill repute, gambling and other prohibited games chance, fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or pornographic materials or publications, and such other activities inimical to the welfare and morals of the inhabitants of the city; This section also authorizes the local government units to regulate properties and business within their territorial limits in the interest of the general welfare. 5 The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit the operation and casinos because they involve games of chance, which are detrimental to the people. Gambling is not allowed by general law and even by the Constitution itself. The legislative power conferred upon local government units may be exercised over all kinds of gambling and not only over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to prohibit them within its territory pursuant to the authority entrusted to it by the Local Government Code. It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein seeking to strengthen the character of the nation. In giving the local government units the power to prevent or suppress gambling and other social problems, the Local Government Code has recognized the competence of such communities to determine and adopt the measures best expected to promote the general welfare of their inhabitants in line with the policies of the State. The petitioners also stress that when the Code expressly authorized the local government units to prevent and suppress gambling and other prohibited games of chance, like craps, baccarat, blackjack and roulette, it meant all forms of gambling within distinction. Ubi lex non distinguit, nec nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of

their power casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that it did not do so simply means that the local government units are permitted to prohibit all kinds of gambling within their territories, including the operation of casinos.chanrobles virtual lawlibrary The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter of the PAGCOR. The Code is not only a later enactment than P. D. 1869 and so is deemed to prevail in case of inconsistencies between them. More than this, the powers of the PAGCOR under the decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and provisions, pursuant to Par. (f) of its repealing clause reading as follows:chanrob1es virtual 1aw library (f) All general and special laws, acts, city charters, decrees, executives orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. It is also maintained that assuming there is doubt regarding the effect of the Local Government Code on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the Code specifically provides:chanrob1es virtual 1aw library SECTION 5. Rules of Interpretation. — In the interpretation of the provisions of this Code, the following rules shall apply:chanrob1es virtual 1aw library (a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be interpreted in favor of the local government unit concerned; x

x

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(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to local government units in accelerating economic development and upgrading the quality of life for the people in the community; . . . (Emphasis supplied.) Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the Constitution and several decisions of this Court expressive of the general and official disapprobation of the vice. They invoke the State policies on the family and the proper upbringing of the youth and, as might be expected, call attention to the old case of U. S. v. Salaveria, 7 which sustained a municipal ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the Philippines." cralawnad This is the opportune time to stress an important point. The morality of gambling is not justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the

legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its own wisdom, which this Court has no authority to review, much less reverse. Well has it been said that courts do no sit to resolve the merits of conflicting theories. 8 That is the prerogative of the political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes are not addressed to the judiciary but may be resolved only by the legislative and executive departments, to which the function belongs in our scheme of government. That function is exclusive. Whichever way these branches decide, they are answerable only to their own conscience and the constituents who will ultimately judge their acts, and not to the courts of justice.chanroblesvirtuallawlibrary:red The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And we shall do so only by the criteria laid down by law and not by our own convictions on the propriety of gambling. The tests of a valid ordinance are well established. A long time of decisions 9 has held to be valid, an ordinance must conform to the following substantive requirements:chanrob1es virtual 1aw library 1) It must not contravene the constitution or any statute. 2) It must not be unfair or oppressive. 3) It must not be partial or discriminatory. 4) It must not prohibit but may regulate trade. 5) It must be general and consistent with public policy. 6) It must not be unreasonable. We begin by observing that under Sec. 458 of the Local Government Code, local government units are authorized to prevent or suppress, among others, "gambling and other prohibited games of chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance which are not prohibited but are in fact permitted by law. The petitioners are less than accurate in claiming that the Code could have excluded such games of chance but did not. In fact it does. The language of the section is clear and unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation to, or given the same meaning of, words which it is associated. Accordingly, we conclude that since the word "gambling" is associated with "and other prohibited games of chance," the word should be read as referring to only illegal gambling which, like the other prohibited games of chance, must be prevented or suppressed. We could stop here as this interpretation should settle the problem quite conclusively. But we will not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and the earnestness of their advocacy, deserve more than short shrift from this Court.chanrobles law library : red

The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it to the operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance admittedly cannot prevail against a statute. Their theory is that the change has been made by the Local Government Code itself, which was also enacted by the national lawmaking authority. In their view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the sense that PAGCOR cannot now operate a casino over the objection of the local government unit concerned. This modification of P.D. 1869 by the Local Government Code is permissible because one law can change or repeal another law. It seems to us that the petitioner are playing with words. While insisting that the decree has only been "modified pro tanto," they are actually arguing that it is already dead, repealed and useless for all intents and purposes because the Code has shorn PAGCOR of all power to centralize and regulate casinos. Strictly speaking, it operates may now be not only prohibited by the local government unit; in fact, the prohibition is not only discretionary by mandated by Section 458 of the Code if the word "shall" as used therein is to be given its accepted meaning. Local government units have now on choice but to prevent and suppress gambling, which in the petitioners‘ view includes both legal and illegal gambling. Under this connection, PAGCOR will have no more games of chance to regulate or centralize as they must all be prohibited by the local government units pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot continue to exist except only as a toothless tiger or a white elephant and will no longer be able to exercise its powers as a price source of government revenue through the operation of casinos. It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently discarding the rest of the provision which painstakingly mentions the specific laws or the parts thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A reading of the entire repealing clause, which is reproduced below, will disclose the omission:chanrob1es virtual 1aw library SECTION 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the Local Government Code." Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed. (b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed.chanrobles.com.ph : virtual law library (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Section

12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intentions. In Lichauco & Co. v. Apostol, 10 this Court explained:chanrob1es virtual 1aw library The cases relating to the subject of repeal by implication all proceed on the assumption that if the act of later date clearly reveals an intention of the part of the lawmaking power to abrogate the prior law, this intention must be given effect; but there must always be a sufficient revelation of this intention, and it has become an unbending rule of statutory construction that the intention to repeal a former law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with reference to which the question arises bear to each other the relation of general to special. There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private respondent points, out, PAGCOR is mentioned as the source of funding in two later enactments of Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes. This would show that the PAGCOR charter has not been repealed by the Local Government Code but has in fact been improved as it were to make the entity more responsive to the fiscal problems of the government. It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably destructive confrontation, courts must exert every effort to reconcile them, remembering that both laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one and annul the other but to give effect to both by harmonizing them if possible. This is possible in the case before us. The proper resolution of the problem at hand is to hold that under the Local Government Code, local government units may (and indeed must) prevent and suppress all kinds of gambling within their territories except only those allowed by statutes like P.D. 1869. The exception reserved in such laws must be read in the Code, to make both the Code and such laws equally effective and mutually complementary. This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The petitioners‘ suggestion that the Code authorize them to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of legislature. Plausibly, following this theory, the City of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro Hippodrome as authorized by R.A. 309 and R.A. 983.cralawnad In light of all the above considerations, we see no way of arriving at the conclusion urged on us by the petitioners that the ordinances in question are valid. On the contrary, we find that the

ordinances violate P.D. 1869, which has the character and force of a statute, as well as the public policy expressed in the decree allowing the playing of certain games of chance despite the prohibition of gambling in general. The rationale of the requirement that the ordinances should not contravene a statute is obvious. Municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a heresy to suggest that the local government units can undo the acts of Congress, from which they have derived their power in the first place, and negate by mere ordinance the mandate of the statute. Municipal corporation owe their origin to, and derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so great a folly and so great a wrong, sweep from existence all of the municipal corporations in the State, the corporation could not prevent it. We know of no concerned. They are, so to phrase it, the mere tenants at will of the legislature. 11 This basic relationship between the national legislature and the local government units has not been enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy. Without meaning to detract from that policy, we here confirm that Congress retains control of the local government units although in significantly reduced degree now than under our previous Constitutions. The power to create still includes the power to destroy. The power to grant still includes the power to withhold or recall. True, there are certain notable innovations in the Constitution, like the direct conferment on the local government units of the power to tax, 12 which cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the principal of the local government units, which cannot defy its will or modify or violate it. The Court understands and admires the concern of the petitioners for the welfare of their constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by the opening of the casino. We share the view that "the hope of large or easy gain, obtained without special effort, turns the head of the workman" 13 and that "habitual gambling is a cause of laziness and ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The laws against gambling must be enforced to the limit." George Washington called gambling "the child of avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D. 1869 in impliedly affirmed in the Local Government Code. That decision can be revoked by this Court only if it contravenes the Constitution as the touchstone of all official acts. We do not find such contravention here. We hold that the power of PAGCOR to centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by the Local Government Code, which empowers the local government units to prevent or suppress only those forms of gambling prohibited by law.chanrobles lawlibrary : rednad Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang

Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all their praiseworthy motives, these ordinance are contrary to P.D. 1869 and the public policy announced therein and are therefore ultra vires and void. WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of Appeals is AFFIRMED, with the costs against the petitioners. It is so ordered. Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur. Separate Opinions

PADILLA, J., concurring:chanrob1es virtual 1aw library I concur with the majority holding that the city ordinances in question cannot modify much less repeal PAGCOR‘s general authority to establish and maintain gambling casinos anywhere in the Philippines under Presidential Decree No. 1869.cralawnad In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a separate opinion that:jgc:chanrobles.com.ph ". . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the entire activity known as gambling properly pertain to ‗state policy‘. It is, therefore, the political departments of government, namely, the legislative and the executive that should decide on what government should do in the entire area of gambling, and assume full responsibility to the people for such policy." (Emphasis supplied) However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the government‘s own efforts to re-establish and resurrect the Filipino moral character which is generally perceived to be in a state of continuing erosion. It is in the light of this alarming perspective that I call upon government to carefully weigh the advantages and disadvantages of setting up more gambling facilities in the country. That the PAGCOR contributes greatly to the coffers of the government is not enough reason for setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a further deterioration in the Filipino moral character. It is worth remembering in this regard that, 1) What is legal is not always moral and 2) the ends do no always justify the means. As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the former will not render it any less reprehensible even if substantial revenue for the government can be realized from it. The same is true of gambling. In the present case, it is my considered view that the national government (through PAGCOR) should re-examine and re-evaluate its decision of imposing the gambling casino on the residents of Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very

much against it, and again the question must be seriously deliberated: will the prospects of revenue to be realized from the casino outweigh the further destruction of the Filipino sense of values? DAVIDE, JR., J., concurring:chanrob1es virtual 1aw library While I concur in part with the majority, I wish, however, to express my views on certain aspects of this case. I

It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court‘s original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it, however, the principal cause of action therein is one for declaratory relief: to declare null and unconstitutional — for, inter alia, having been enacted without or in excess of jurisdiction, for impairing the obligation of contracts, and for being inconsistent with public policy — the challenged ordinances enacted by the Sangguniang Panlungsod of the City of Cagayan de Oro. The intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR) further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for being contrary to the non-impairment and equal protection clauses of the Constitution, violative of the Local Government Code, and against the State‘s national policy declared in P.D. No. 1869. Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even assuming arguendo that the case is one for prohibition, then, under this Court‘s established policy relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which case the filing of the petition with the Court of Appeals may have been impelled by tactical considerations. A dismissal of the petition by the Court of Appeals would have been in order pursuant to our decisions in People v. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago v. Vasquez (217 SCRA 633 1993]). In Cuaresma, this Court stated:jgc:chanrobles.com.ph "A last word. This court‘s original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo warranto, habeas corpus and injunction) is not exclusive . It is shared by this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ, enforceable in any part of their respective regions. It is also shared by this court, and by the Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the latter‘s competence to issue the extraordinary writs was restricted by those `in aid of its appellate jurisdiction.‘ This concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice of the court to which application therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative of the venue of appeals, and should also serve as a general determinant of the appropriate forum for petitions for the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level (‘inferior‘) courts should be filed with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct invocation of the Supreme Court‘s original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefore, clearly and specifically set out in the petition. This is established policy. It is a policy

that is necessary to prevent inordinate demands upon the Court‘s time and attention which are better devoted to those matters within its exclusive jurisdiction, and to prevent further overcrowding of the Court‘s docket. Indeed, the removal of the restriction of the jurisdiction of the Court of Appeals in this regard, supra — resulting from the deletion of the qualifying phrase, ‗in aid of its appellate jurisdiction‘ — was evidently intended precisely to relieve this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for the expansions for extraordinary writs which, but for the expansion of the Appellate Court‘s corresponding jurisdiction, would have had to be filed with it." (Citations omitted) And in Vasquez, this Court said:jgc:chanrobles.com.ph "One final observation. We discern in the proceedings in this case a propensity on the part of petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from this Court despite the fact that the same is available in the lower courts in the exercise of their original or concurrent jurisdiction, or its even mandated by law to be sought therein. This practice must be stopped, not only because of the imposition upon the previous time of this Court but also because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case which often has to be remanded or referred to the lower court as the proper forum under the rules of procedure, or as better equipped to resolve the issues since this court is not a trier of facts. We, therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the redress desired cannot be obtained in the appropriate courts or where exceptional and compelling circumstances justify availment of a remedy within and calling for the exercise of our primary jurisdiction." chanrobles law library : red II.

The challenged ordinance are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the Issuance of Business Permit and Cancelling Existing Business Permit To Any Establishment for the Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b) Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing Penalty for Violation Therefore." They were enacted to implement Resolution No. 2295 entitled, "Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990 - nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter leased a portion of the former‘s Pryce Plaza Hotel for the operation of a gambling casino — which resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992. The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod‘s express powers conferred by Section 458paragraph (a)subparagraphs (1)-(V), (3)-(ii), and (4)-(i), (iv), and , , (vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the general welfare clause) which reads:jgc:chanrobles.com.ph "SECTION 16. General Welfare. — Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced

ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment amount their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants."cralaw virtua1aw library The issue that necessarily arises is whether in granting local governments (such as the City of Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto, repealed P.D. No. 1869 insofar as PAGCOR‘S general authority to establish and maintain gambling casinos anywhere in the Philippines is concerned.chanrobles law library I join the majority in holding that the ordinances cannot repeal P.D. No. 1869. III.

The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not necessarily a contravention of the constitution. In any case, the ordinances can still stand even if they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do. So reconciled, the ordinances should be construed as not applying to PAGCOR. IV.

From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are, for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling, even if legalized, would be inimical to the general welfare of the inhabitants of the city, or of any place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an arbitrary, if not despotic, manner.