NDETERMINATE SENTENCE LAW

(Act No. 4103 as amended by Act No. 4225)

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT ENTITLED

TO THE APPLICATION OF THE INDETERMINATE SENTENCE LAW

Accused-appellant cannot avail of the benefits of the Indeterminate Sentence Law

because Indeterminate Sentence Law does not apply to persons convicted of
offenses punishable with reclusion perpetua.

(People v. Aquino; GR 125906, Jan. 16, 98)

APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED

In the case of People vs. Gabres, the Court has had occasion to so state that

"Under the Indeterminate Sentence Law, the maximum term of the penalty shall be
'that which, in view of the attending circumstances, could be properly imposed'
under the Revised Penal Code, and the minimum shall be within the range of the
penalty next lower to that prescribed' for the offense. The penalty next lower should
be based on the penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the crime.
The determination of the minimum penalty is left by law to the sound discretion of
the court and it can be anywhere within the range of the penalty next lower without
any reference to the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the maximum term of the
indeterminate sentence.

"The fact that the amounts involved in the instant case exceed P22,000.00 should
not be considered in the initial determination of the indeterminate penalty; instead,
the matter should be so taken as analogous to modifying circumstances in the
imposition of the maximum term of the full indeterminate sentence. This
interpretation of the law accords with the rule that penal laws should be construed
in favor of the accused. Since the penalty prescribed by law for the estafa charge
against accused-appellant is prision correccional maximum to prision mayor
minimum, the penalty next lower would then be prision correccional minimum to
medium. Thus, the minimum term of the indeterminate sentence should be
anywhere within six (6) months and one (1) day to four (4) years and two (2)
months . . ."

(People v. Saley; GR 121179, July 2, 98)

INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG CASES:

The final query is whether or not the Indeterminate Sentence Law is applicable to
the case now before us. Apparently it does, since drug offenses are not included in
nor has appellant committed any act which would put him within the exceptions to
said law and the penalty to be imposed does not involve reclusion perpetua or
death, provided, of course, that the penalty as ultimately resolved will exceed one
year of imprisonment. The more important aspect, however, is how the
indeterminate sentence shall be ascertained. It is true that Section 1 of said law,
after providing for indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same" We hold that this quoted portion of
the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as
discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law. There can be no sensible debate that the aforequoted
rule on indeterminate sentence for offenses under special laws was necessary
because of the nature of the former type of penalties under said laws which were
not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to
that prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided, this rule
applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an
application and is justified under the rule of contemporanea expositio. Republic Act
No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the maximum
of said sentence, we have applied the provisions of the amended Section 20 of said
law to arrive at prision correccional and Article 64 of the Code to impose the same
in the medium period. Such offense, although provided for in a special law, is now in
the effect punished by and under the Revised Penal Code.

(People v Martin Simon)

WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT APPLICABLE;

a. Offenses punished by death or life imprisonment.

b. Those convicted of treason (Art. 114), conspiracy or proposal to commit treason

(Art. 115).

c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134), sedition
(Art. 139), or espionage

(Art. 117).

d. Those convicted of piracy (Art. 122).

e. Habitual delinquents (Art. 62, par. 5).

f. Those who escaped from confinement or those who evaded sentence.

g. Those granted conditional pardon and who violated the terms of the same (Art.
159). (People v. Corral, 74

Phil. 359).

h. Those whose maximum period of imprisonment does not exceed one year.

i. Those who are already serving final judgment upon the approval of the
Indeterminate Sentence Law.

j. those offenses or crimes not punishable by imprisonment such as distierro and

suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE SENTENCE

Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L-28547,
Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law even if
the crime is committed while he is on parole. (People v. Clareon, CA 78 O.G. 6701,
Nov. 19, 1982). (Bacar v. De Guzman)

NATURE OF PENALTY OF RECLUSION PERPETUA

In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared that
despite the amendment of Article 27 of the Revised Penal Code, reclusion perpetua
remained an indivisible penalty. Hence, the penalty does not have any minimum,
medium and maximum period. Hence, there is no such penalty of medium period of
reclusion perpetua. (People versus Tiburcio Baculi, 246 SCRA)

IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN FINALITY

Suppose the court imposed a penalty of 25 years of reclusion perpetua for the crime
of rape and the accused did not appeal, does the judgment become final and
executory? No, such judgment is null and void because it imposed a non-existent
penalty. Hence, the court may nevertheless correct the penalty imposed on the
accused, that is, reclusion perpetua, it is merely performing a duty inherent in the
court. (People versus Nigel Gatward, GR No. 119772-73, February 7, 1997)

DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE IMPRISONMENT

The penalty of reclusion perpetua is different from life imprisonment. The former
carries with it accessory penalties, whereas life imprisonment does not carry with it
any accessory penalties; reclusion perpetua is that provided for under the Revised
Penal Code and under crimes defined by special laws using the nomenclature under
the Revised Penal Code ; life imprisonment is that provided for violations of the
Revised Penal Code. Reclusion Perpetua may be reduced by one or two degrees
while life imprisonment cannot be so reduced. (People -vs- Rolnando Madriaga, GR
No. 82293, July 23, 1992.)
WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION PERPETUA

Reclusion perpetua has accessory penalties while life imprisonment does not.
However, life imprisonment does not have a fixed duration or extent while reclusion
perpetua has a duration of from twenty years and one day to forty years. life
imprisonment may span the natural life of the convict. (People -versus- Rallagan,
247 SCRA 537)

RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGE WHEN

IMPOSED AS PENALTY

Where the law violated provides for the penalty of reclusion perpetua, impose the
said penalty and not the penalty of life imprisonment. Where the law imposes the
penalty of life imprisonment, do not impose reclusion perpetua. (People -vs- Rolando
Madriaga, 211 SCRA 698)

THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME BEING
INDIVISIBLE

There we also said that "if reclusion perpetua was reclassified as a divisible penalty,
then Article 63 of the Revised Penal Code would lose its reason and basis for
existence." The imputed duration of thirty (30) years of reclusion perpetua,
therefore, only serves as the basis for determining the convict's eligibility for pardon
or for the application of the three-fold rule in the service of multiple penalties.
(People -vs- Aspolinar Raganas, et al., GR No. 101188, October 12, 1999)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE THE

PENALTY BEING LIFE IMPRISONMENT

Where the accused committed qualified violation of PD 704 (fishing with the use of
explosives), the imposable penalty for which is life imprisonment to death. If the
accused is entitled to a mitigating circumstance of voluntary surrender, the court
should impose life imprisonment applying, in a suppletory character, Articles 13 and
63 of the Revised Penal Code. (People -vs- Priscilla Balasa, GR No. 106357,
September 3, 1998)

ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED TO

EITHER FULL OR OF HIS PREVENTIVE IMPRISONMENT

If, during the trial, the accused was detained but, after trial, he was meted the
penalty of reclusion perpetua, he is still entitled to the full credit of his preventive
imprisonment because Article 29 of the Revised Penal Code does not distinguish
between divisible and indivisible penalties. (People -vs- Rolando Corpuz, 231 SCRA
480)

THE PROBATION LAW (P.D. 968) AND ITS AMENDMENTS

PROBATION, ITS MEANING

A disposition under which a defendant, after conviction and sentence, is subject to

conditions imposed by the Court and under the supervision of a probation officer.

PURPOSES OF PROBATION:

a. to promote the correction and rehabilitation of an offender by providing him with

personalized

community based treatment;

b. to provide an opportunity for his reformation and reintegration into the

community;

c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND TIME OF FILING OFPETITION

The petition or application for probation must be filed directly with the Court which
sentenced the accused within 15 days from date of promulgation of the decision
convicting the accused, or in short within the period to appeal otherwise the
judgment shall become final and the accused shall be deemed to have waived his
right to probation.

EFFECT OF FILING OF PETITION FOR PROBATION

Upon filing of petition for probation, the court shall suspend the execution of
sentence.

Likewise, the filing of a petition for probation shall be deemed a waiver of the right
to appeal and in case an appeal is made immediately after conviction, a filing of
petition for probation still within the period to appeal, that is within fifteen days
from date of promulgation shall be deemed a withdrawal of the appeal.

PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE THAT MAYBE GIVEN
TO THE ACCUSED-PETITIONER?

1. if the accused, prior to the promulgation of decision of conviction is out on bail,

he may be allowed on

temporary liberty under his bail filed in said case;

2. if he is under detention, upon motion, he may be allowed temporary liberty, if he

cannot post a bond, on

recognizance of a responsible member of a community who shall guarantee his

appearance whenever

required by the court.

IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE
CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS?

The custodian must be asked to explain why he should not be cited for contempt for
failing to produce the probationer when required by the court; Summary hearing will
be held for indirect contempt, and if custodian cannot produce the petitioner, nor to
explain his failure to produce the petitioner, the custodian on recognizance shall be
held in contempt of court.

WHAT IS A POST SENTENCE INVESTIGATION REPORT?

It is a report of the Parole and Probation Officer after conducting post sentence
investigation and interviews containing the circumstances surrounding the offense
for which the petitioner was convicted. The findings should be drawn from the court
records, police records, statement of defendants, the aggrieved party and other
persons who may know the petitioner and all other matters material to the petition.

It will also include the psychological and social information regarding the
probationer; evaluation of the petitioner; suitability for probation; his potential for
rehabilitation; and may include the program for supervision and suggested terms of
conditions of probation and a recommendation either to deny or grant the
probation.

WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?

a. To present himself to the probation officer concerned for supervision within 72

hours from receipt of said

order and

b. to report to the probation officer at least once a month during the period of
probation.
WHAT ARE THE OTHER CONDITIONS OF PROBATION?

a. cooperate with a program of supervision;

b. meet his family responsibilities;

c. devote himself to a specific employment and not to charge said employment

without prior written

approval of the probation officer;

d. comply with a program of payment of civil liability to the victim of his heirs;

e. undergo medical, psychological or psychiatric examination and treatment and/or

enter and remain in a

specific institution, when required for that purposes;

f. pursue a prescribed secular study or vocational training;

g. attend or reside in a facility established for instruction or recreation of persons on

probation;

h. refrain from visiting houses of ill-repute;

i. abstain from drinking intoxicating beverages to excess;

j. permit the probation officer or an authorized social worker to visit his home and
place of work;

k. reside at premises approved by the court and not to change his residence w/o
prior written approval; and

l. satisfy any other condition related to the rehabilitation of the probationer and not
unduly restrictive of his

liberty or incompatible with his freedom of conscience.

m. plant trees ( see circular of the SC )

RULES ON OUTSIDE TRAVEL OF PROBATIONER

A probationer who desires to travel outside the jurisdiction of the city or provincial
probation officer for not more than 30 days, the permission of the parole and
probation officer must be sought. If for more than thirty (30) days, aside from the
permission of the parole and probation officer, the permission of the court must
likewise be sought.

EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION

a. If the accused appeals his conviction for the purpose of totally reversing his
conviction, he is deemed to have waived his right to probation.

b. The rule that if the accused appeals his conviction only with respect to the
penalty, as he believes the penalty is excessive or wrong, as the penalty is
probationable, and the appellate court sustains the accused may still apply for
probation, has already been abandoned. An appeal therefore, irrespective of its
purpose, to overturn the entire decision or only with respect to penalty is a waiver
to probation, has already been abandoned. An appeal therefore, irrespective of its
purpose, to overturn the entire decision or only with respect to penalty is a waiver
to probation.

CONFIDENTIALITY OF RECORDS OF PROBATION

The investigation report and the supervision and history of a probationer obtained
under PD No. 968 and under these rules shall be privileged and shall not be
disclosed directly or indirectly to anyone other than the probation administration or
the court concerned the court which granted the probation or where the probation
was transferred may allow the probationer to inspect the aforesaid documents or his
lawyer, whenever such disclosure may be desirable or helpful to them.

Any government office may ask for the records of probation from the court for its
official use or from the administrator.

Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS.

The penalty of imprisonment ranging from six months and one day to six years and
a fine ranging from hundred to six thousand pesos shall be imposed upon any
person who violates Section 17 hereof.

MODIFICATION OF CONDITION OR PERIOD OF PROBATION

The court, on motion, or motu propio may modify the conditions of probation or
modify the period of probation as circumstances may warrant.

WHO ARE DISQUALIFIED TO UNDERGO PROBATION

1. Those sentenced to serve a maximum term of imprisonment of more than six

years.

2. Those convicted of any offense against the security of the state;

3. Those who have been previously convicted by final judgment of an offense

punished by imprisonment of not less than one moth and one day and/or a fine of
not less than P200.00;

4. Those who have been once on probation under the provisions of this decree.

5. Those convicted of RA 9156.

6. Those convicted of violation of election laws.

PERIOD OF PROBATION

1. If the probationer has been sentenced to an imprisonment of not more than one
year, the probation shall not exceed two years;

2. In all other cases, not to exceed six years;

3. In case the penalty is fine, the probation shall not be less than the period of
subsidiary imprisonment nor more than twice of the subsidiary imprisonment.
AMENDMENT TO SECTION 4 OF PD 968:

"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a defendant, and upon application
by said defendant within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such period and upon
such terms and conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.

"Probation may be granted whether the sentence imposes a term of imprisonment

or a fine only. An application for probation shall be filed with the trial court. The
filing of the application shall be deemed a waiver of the right to appeal.

"An order granting or denying probation shall not be appealable."

Thus, a person who was sentenced to destierro cannot apply for probation. Reason:
it does not involved imprisonment or fine. (PD 1990)

JURISPRUDENCE

UNDERLYING PHILOSOPHY OF PROBATION

The underlying philosophy of probation is indeed one of liberality towards the

accused. It is not served by a harsh and stringent interpretation of the statutory
provisions. Probation is a major step taken by our Government towards the
deterrence and minimizing of crime and the humanization of criminal justice. In line
with the public policy behind probation, the right of appeal should not be irrevocably
lost from the moment a convicted accused files an application for probation. Appeal
and probation spring from the same policy considerations of justice, humanity, and
compassion. (Yusi v Morales, 4/28/83)
PROBATION IS NOT A RIGHT BUT A PRIVILEGE

Probation is a mere privilege and its grant rests solely upon the discretion of the
court. As aptly noted in U.S. vs. Durken, this discretion is to be exercised primarily
for the benefit of organized society and only incidentally for the benefit of the
accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83). Even if a convicted person
is not included in the list of offenders disqualified from the benefits of a decree, the
grant of probation is nevertheless not automatic or ministerial, (Pablo Bernardo v.
Balagot, 215 SCRA 526) therefore a petition for probation may be denied by the
Court.

MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION.

The main criterion laid down by the Probation law in determining who may be
granted probation is based on the penalty imposed and not on the nature of the
crime. By the relative lightness of the offense, as measured by the penalty imposed,
more than by its nature, as the law so ordains the offender is not such a serious
menace to society as to be wrested away therefrom, as the more dangerous type of
criminals should be. Hence, in the case at bar, the first reason given by the
respondent judge for his denial of the petition for probation that, "probation will
depreciate the seriousness of the offense committed" would thus be writing into the
law a new ground for disqualifying a first-offender from the benefits of probation.
(Santos v. Cruz-Pano, 1/17/83)

TIMELINESS OF FILING APPLICATION FOR PROBATION

The accused must file a Petition for Probation within the period for appeal. If the
decision of conviction has become final and executory, the accused is barred from
filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95).
ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI

Although an order denying probation is not appealable, the accused may file a
motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)

EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND

FINALITY OF JUDGEMENT

A judgment of conviction becomes final when the accused files a petition for
probation. However, the judgement is not executory until the petition for probation
is resolved. The filing of the petition for probation is a waiver by the accused of his
right to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH

CONVICTION IS PROBATIONABLE

." Evidently, the law does not intend to sum up the penalties imposed but to take
each penalty, separately and distinctly with the others. Consequently, even if
petitioner was supposed to have served his prison term of one (1) year and one (1)
day to one (1) year and eight (8) months of prision correccional sixteen (16) times
as he was sentenced to serve the prison term for "each crime committed on each
date of each case, as alleged in the information(s)," and in each of the four (4)
informations, he was charged with having defamed the four (4) private
complainants on four (4) different, separate days, he was still eligible for probation,
as each prison term imposed on petitioner was probationable. (Francisco v. CA;
4/16/95)

REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS IMPRISONMENT
FOR PROBATION.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for
probation is based on the assumption that those sentenced to higher penalties pose
too great a risk to society, not just because of their demonstrated capability for
serious wrongdoing but because of the gravity and serious consequences of the
offense they might further commit. The Probation Law, as amended, disqualifies
only those who have been convicted of grave felonies as defined in Art. 9 in relation
to Art. 25 of The Revised Penal Code, and not necessarily those who have been
convicted of multiple offenses in a single proceeding who are deemed to be less
perverse. Hence, the basis of the disqualification is principally the gravity of the
offense committed and the concomitant degree of penalty imposed. Those
sentenced to a maximum term not exceeding six (6) years are not generally
considered callous, hard core criminals, and thus may avail of probation

VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE

GOVERNMENT DESPITE PROBATION

Drug-pushing, as a crime, has been variously condemned as "an especially vicious

crime," "one of the most pernicious evils that has ever crept into our society." For
those who become addicted to it "not only slide into the ranks of the living dead,
what is worse, they become a grave menace to the safety of law-abiding members
of society," while "peddlers of drugs are actually agents of destruction. The deserve
no less than the maximum penalty [of death]."

There is no doubt that drug-pushing is a crime which involves moral turpitude and
implies "every thing which is done contrary to justice, honesty, modesty or good
morals" including "acts of baseness, vileness, or depravity in the private and social
duties which a man owes to his fellowmen or to society in general, contrary to the
accepted rule of right and duty between man and man." Indeed nothing is more
depraved than for anyone to be a merchant of death by selling prohibited drugs, an
act which, as this Court said in one case,"often breeds other crimes. It is not what
we might call a 'contained' crime whose consequences are limited to that crime
alone, like swindling and bigamy. Court and police records show that a significant
number of murders, rapes, and similar offenses have been committed by persons
under the influence of dangerous drugs, or while they are 'high.' While spreading
such drugs, the drug-pusher is also abetting, through his agreed and irresponsibility,
the commission of other crimes." The image of the judiciary is tarnished by conduct,
which involves moral turpitude. While indeed the purpose of the Probation Law (P.D.
No. 968, as amended) is to save valuable human material, it must not be forgotten
that unlike pardon probation does not obliterate the crime of which the person
under probation has been convicted. The reform and rehabilitation of the
probationer cannot justify his retention in the government service. He may seek to
reenter government service, but only after he has shown that he is fit to serve once
again. It cannot be repeated too often that a public office is a public trust, which
demands of those in its service the highest degree of morality. (OCA v. Librado 260
SCRA 624, 8/22/96)

PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE

DISCHARGE FROM PROBATION IN CERTAIN CASES

Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any infraction of
the attendant conditions therefor and the various certifications attesting to his
righteous, peaceful and civic-oriented character prove that he has taken decisive
steps to purge himself of his deficiency in moral character and atone for the
unfortunate death of Raul I. Camaligan. The Court is prepared to give him the
benefit of the doubt, taking judicial notice of the general tendency of the youth to
be rash, temerarious and uncalculating. Let it be stressed to herein petitioner that
the lawyer's oath is not a mere formality recited for a few minutes in the glare of
flashing cameras and before the presence of select witnesses. Petitioner is exhorted
to conduct himself beyond reproach at all times and to live strictly according to his
oath and the Code of Professional Responsibility. And, to paraphrase Mr. Justice
Padilla's comment in the sister case of Re: Petition of Al Argosino To Take The
Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court sincerely hopes
that" Mr. Cuevas, Jr., "will continue with the assistance he has been giving to his
community. As a lawyer he will now be in a better position to render legal and other
services to the more unfortunate members of society". (In Re: Cuevas, Jr.; 1/27/98)

EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF COURT

REQUIRED

The mere expiration of the period for probation does not, ipso facto, terminate the
probation. Probation is not co-terminus with its period, there must be an order from
the Court of final discharge, terminating the probation. If the accused violates the
condition of the probation before the issuance of said order, the probation may be
revoked by the Court (Manuel Bala v. Martinez, 181 SCRA 459).

ANTI-GRAFT AND CORRUPT PRACTICES ACT

Corrupt practices of public officers.

(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.

UNEXPLAINED WEALTH, MEANING

Prima facie evidence of and dismissal due to unexplained wealth. If in accordance
with the provisions of RA 1379, a public official has been found to have acquired
during his incumbency, whether in his name or in the name of other persons, an
amount of property and/or money manifestly out of proportion to his salary and to
his other lawful income, that fact shall be a ground for dismissal or removal.

Note: Unsolicited gifts or presents of small or insignificant value shall be offered or

given as a mere ordinary token of gratitude or friendship according to local customs
or usage shall be exempted from the provision of this act.

MEANING OF CAUSING UNDUE INJURY

The act of giving any private party any unwarranted benefit, advantage or
preference is not an indispensable element of causing any undue injury to any part,
although there may be instances where both elements concur. (Santiago vs
Garchitorena, et al., 2 Dec. 93).

In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender in
causing undue injury does not refer only to those who are in charge of giving
permits, licenses or concessions but all acts of public officers or employees which
have caused undue injury to others.

ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019

a. the offender is a public officer;

b. the said officer has neglected or has refused to act without sufficient justification
after due demand or request has been made upon him;

c. reasonable time has elapsed from such demand or request without the public
officer having acted on the matter pending before him;
d. such failure to so act is for the purpose of obtaining directly or indirectly from any
person interested in the matter some pecuniary or material benefit or advantage in
favor of an interested party or discriminating against another. Coronado v
Sandiganbayan.

WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD FAITH,
OR INEXCUSABLE

NEGLIGENCE

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 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.

VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING

FACTS, VIZ:

a. the accused is a public officer discharging administrative or official functions or

private persons charged in conspiracy with them;

b. the public officer committed the prohibited act during the performance of his
official duty or in relation to his public position;
c. the public officer acted with manifest partiality evident bad faith or gross,
inexcusable negligence; and

d. his action caused undue injury to the government or any private party, or gave
any party any unwarranted benefit, advantage or preference to such parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.

Section 3 enumerates in eleven subsections the corrupt practices of any public

officer declared unlawful. Its reference to any public officer is without distinction or
qualification and it specifies the acts declared unlawful. We agree with the view
adopted by the Solicitor General that the last inclusion of officers and employees of
offices or government corporations which, under the ordinary concept of public
officer may not come within the term. It is a strained construction of the provision
to read it as applying exclusively to public officers charged with the duty of granting
license or permits or other concessions. (Mejorada v Sandiganbayan, 151 SCRA
399).

SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO

DETERMINE

WHETHER INFORMATION IS VALID OR NOT

It is well settled that Section 13 of RA 3019 makes it mandatory for the

Sandiganbayan (or the Court) to suspend any public officer against whom a valid
information charging violation of this law, Book II, Title 7 of the RPC, or any offense
involving fraud upon government or public funds or property is filed in court. The
court trying a case has neither discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using his office to intimidate
witnesses or frustrate his prosecution or continue committing malfeasance in office.
All that is required is for the court to make a finding that the accused stands
charged under a valid information for any of the above-described crimes for the
purpose of granting or denying the sought for suspension. (Bolastig vs.
Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103).In the same
case, the Court held that "as applied to criminal prosecutions under RA 3019,
preventive suspension will last for less than ninety (90) days only if the case is
decided within that period; otherwise, it will continue for ninety (90) days."
(Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE
CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS TERM

Judge Monzon's contention denying complainant's Motion for Suspension because

"offenses committed during the previous term (is) not a cause for removal during
the present term" is untenable. In the case of Rodolfo E. Aguinaldo vs. Hon. Luis
Santos and Melvin Vargas, 212 SCRA 768, the Court held that "the rule is that a
public official cannot be removed for administrative misconduct committed during a
prior term since his re-election to office operates as a condonation of the officer's
previous misconduct committed during a prior term, to the extent of cutting off the
right to remove him therefor. The foregoing rule, however, finds no application to
criminal cases . . ."

Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-
23220, 18 December 1967, 21 SCRA 1292, that "The ruling, therefore, that 'when
the people have elected a man to office it must be assumed that they did this with
knowledge of his life and character and that they disregarded or forgave his faults
or misconduct if he had been guilty of any' refers only to an action for removal from
office and does not apply to a criminal case"

Clearly, even if the alleged unlawful appointment was committed during

Maghirang's first term as barangay chairman and the Motion for his suspension was
only filed in 1995 during his second term, his re-election is not a bar to his
suspension as the suspension sought for is in connection with a criminal case.
(Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE LIABILITY

BUT
NOT HIS CRIMINAL LIABILITY

As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly ruled that
the re-election of a public official extinguishes only the administrative, but not the
criminal, liability incurred by him during his previous term of office, thus:

The ruling, therefore, that "when the people have elected a man to his office it
must be assumed that they did this with knowledge of his life and character and
that they disregarded or forgave his faults or misconduct if he had been guilty of
any" refers only to an action for removal from office and does not apply to
criminal case, because a crime is a public wrong more atrocious in character than
mere misfeasance or malfeasance committed by a public officer in the discharge of
his duties, and is injurious not only to a person or group of persons but to the State
as a whole. This must be the reason why Article 89 of the Revised Penal Code, which
enumerates the grounds for extinction of criminal liability, does not include
reelection to office as one of them, at least insofar as a public officer is concerned.
Also, under the Constitution, it is only the President who may grant the pardon of a
criminal offense. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019

It is mandatory for the court to place under preventive suspension a public officer
accused before it. Imposition of suspension, however, is not automatic or self-
operative. A pre-condition thereof is the existence of a valid information,
determined at a pre-suspension hearing. Such a hearing is in accord with the spirit
of the law, considering the serious and far-reaching consequences of a suspension
of a public official even before his conviction, and the demands of public interest for
a speedy determination of the issues involved in the case. The purpose of the pre-
suspension hearing is basically to determine the validity of the information and
thereby furnish the court with a basis to either suspend the accused and proceed
with the trial on the merits of the case, or refuse suspension of the latter and
dismiss the case, or correct any part of the proceeding which impairs its validity.
The accused should be given adequate opportunity to challenge the validity or
regularity of the criminal proceedings against him; e.g. that he has not been
afforded the right to due preliminary investigation; that the acts imputed to him do
not constitute a specific crime (under R.A. 3019 or the Revised Penal Code)
warranting his mandatory suspension from office under Section 13 of the Act; or
that the information is subject to quashal on any of the grounds set out in Rule 117
of the Rules of Court. But once a proper determination of the validity of the
information has been made, it becomes the ministerial duty of the court to forthwith
issue the order of preventive suspension. The court has no discretion, for instance,
to hold in abeyance the suspension of the accused official on the pretext that the
order denying the latter's motion to quash is pending review before the appellate
courts. (Segovia v. Sandiganbayan; GR 124067, Mar. 27, 1998)

GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES

"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40
SCRA 187), we have set out the guidelines to be followed by the lower courts in the
exercise of the power of suspension under Section 13 of the law, to wit:

(c) By way of broad guidelines for the lower courts in the exercise of the power of
suspension from office of public officers charged under a valid information under the
provisions of Republic Act No. 3019 or under the provisions of the Revised Penal
Code on bribery, pursuant to section 13 of said Act, it may be briefly stated that
upon the filing of such information, the trial court should issue an order with proper
notice requiring the accused officer to show cause at a specific date of hearing why
he should not be ordered suspended from office pursuant to the cited mandatory
provisions of the Act. Where either the prosecution seasonably files a motion for an
order of suspension or the accused in turn files a motion to quash the information or
challenges the validity thereof, such show-cause order of the trial court would no
longer be necessary. What is indispensable is that the trial court duly hear the
parties at a hearing held for determining the validity of the information, and
thereafter hand down its ruling, issuing the corresponding order of suspension
should it uphold the validity of the information or withhold such suspension in the
contrary case.

(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to
state that the accused should be given a fair and adequate opportunity to challenge
the validity of the criminal proceedings against him, e.g., that he has not been
afforded the right of due preliminary investigation, the act for which he stands
charged do not constitute a violation of the provisions of Republic Act No. 3019 or of
the bribery provisions of the Revised Penal Code which would warrant his
mandatory suspension from office under Section 13 of the Act, or he may present a
motion to quash the information on any of the grounds provided in Rule 117 of the
Rules of Court. The mandatory suspension decreed by the act upon determination of
the pendency in court or a criminal prosecution for violation of the Anti-Graft Act or
for bribery under a valid information requires at the same time that the hearing be
expeditious, and not unduly protracted such as to thwart the prompt suspension
envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the
quashal motion not to be indubitable, then it shall be called upon to issue the
suspension order upon its upholding the validity of the information and setting the
same for trial on the merits.' (Segovia v. Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC.
3(e) of RA 3019

xxx xxx xxx

(c) 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."

To hold a person liable under this section, the concurrence of the following elements
must be established beyond reasonable doubt by the prosecution:

"(1) That the accused is a public officer or a private person charged in conspiracy
with the former;

(2) That said public officer commits the prohibited acts during the performance of
his or her official duties or in relation to his or her public positions;

(3) That he or she causes undue injury to any party, whether the government or a
private party; and

(4) That the public officer has acted with manifest partiality, evident bad faith or
gross inexcusable negligence." (Llorente v. Sandiganbayan; GR 122166, Mar. 11,
1998)
MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019

"Bad faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or ill will; it partakes of the
nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd Series 895, 1007). It
contemplates a state of mind affirmatively operating with furtive design or some
motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso, 18
SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the
part of the accused to do wrong or cause damage."

In Jacinto, evident bad faith was not appreciated because the actions taken by the
accused were not entirely without rhyme or reason; he refused to release the
complainant's salary because the latter failed to submit her daily time record; he
refused to approve her sick-leave application because he found out that she did not
suffer any illness; and he removed her name from the plantilla because she was
moonlighting during office hours. Such actions were measures taken by a superior
against an erring employee who studiously ignored, if not defied, his authority.
(Llorente v. Sandiganbayan)

WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019

It would appear that petitioner's failure or refusal to act on the complainant's

vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]:

"(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 purpose of favoring
his own interest or giving undue advantage in favor of or discriminating against any
other interested party."
Here, the neglect or refusal to act within a reasonable time is the criminal act, not
the causing of undue injury. Thus, its elements are:

"1) The offender is a public officer;

2) Said officer has neglected or has refused to act without sufficient justification
after due demand or request has been made on him;

3) Reasonable time has elapsed from such demand or request without the public
officer having acted on the matter pending before him; and

4) Such failure to so act is 'for the purpose of obtaining, directly or indirectly, from
any person interested in the matter some pecuniary or material benefit or
advantage in favor of an interested party, or discriminating against another."

However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further
disquisition is not proper. Neither may this Court convict petitioner under Sec. 3[f]
without violating his constitutional right to due process. (Llorente v. Sandiganbayan)

SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS

On the other hand, we find merit in petitioner's second assigned error. The
Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single
case filed against him. Under Section 63 (b) of the Local Government Code, "any
single preventive suspension of local elective officials shall not extend beyond sixty
(60) days." (Rios v. Sandiganbayan; GR 129913, Set. 26, 1997)

APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION

Since the petitioner is an incumbent public official charged in a valid information

with an offense punishable under the Constitution and the laws (RA 3019 and PD
807), the law's command that he "shall be suspended from office" pendente lite
must be obeyed. His approved leave of absence is not a bar to his preventive
suspension for as indicated by the Solicitor General, an approved leave, whether it
be for a fixed or indefinite period, may be cancelled or shortened at will by the
incumbent. (Doromal v. Sandiganbayan; GR 85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS AND A

GROUND TO DISMISS

After a careful review of the facts and circumstances of this case, we are
constrained to hold that the inordinate delay in terminating the preliminary
investigation and filing the information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a speedy
disposition of the cases against him. Accordingly, the informations in Criminal Cases
Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the
foregoing, we find it unnecessary to rule on the other issues raised by petitioner.
(Tatad v. Sandiganbayan)