EN BANC
arguing, among other things, that even assuming he committed the acts
G.R. No. 206513, October 20, 2015
MUSTAPHA DIMAKUTA Y MARUHOM, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my
Dissenting and Concurring Opinion in Colinares v. People.1 The question
regarding the application of the Probation Law is again inescapably
intertwined with the present petition. Consequently, I must reiterate my
assertions and arguments in Colinares to the case at bar.
In the present controversy, petitioner Mustapha Dimakuta y Maruhom alias
Boyet was indicted for Violation of Section 5 Paragraph (b), Article III of
Republic Act (R.A.) No. 7610 or the Special Protection of Children Against
Abuse, Exploitation and Discriminatory Act. The Information reads:
That on or about the 24th day of September 2005, in the City of Las Pias,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, with lewd designs, did then and there willfully, unlawfully
and feloniously commit a lascivious conduct upon the person of one AAA,
who was then a sixteen (16) year old minor, by then and there embracing
her, touching her breast and private part against her will and without her
consent and the act complained of is prejudicial to the physical and
psychological development of the complainant.2ChanRoblesVirtualawlibrary
After trial, the RTC promulgated its Decision3 which convicted petitioner of
the crime charged and sentenced him to suffer an indeterminate penalty of
imprisonment ranging from ten (10) years of prision mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal,
as maximum, with the accessory penalty of perpetual absolute
disqualification. In addition, he was directed to pay a fine of P20,000.00, civil
indemnity of P25,000.00, and moral damages of P25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA)
imputed, still there is no evidence showing that the same were done without
the victim's consent or through force, duress, intimidation or violence upon
her. Surprisingly, when asked to comment on the appeal, the Office of the
Solicitor General (OSG), relying heavily on People v. Abello,5 opined that
petitioner should have been convicted only of Acts of Lasciviousness under
Article 336 of the Revised Penal Code (RPC) in view of the prosecution's
failure to establish that the lascivious acts were attended by force or
coercion because the victim was asleep at the time the alleged acts were
committed.
On June 28, 2012, the CA rendered a Decision6 adopting the
recommendation of the OSG. In modifying the RTC Decision, petitioner was
found guilty of Acts of Lasciviousness under Article 336 of the RPC and was
sentenced to suffer the indeterminate penalty of six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision
correctional, as maximum. Likewise, he was ordered to pay P20,000.00 as
civil indemnity and P30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012.7 Instead of
further appealing the case, he filed on July 23, 2012 before the CA a
manifestation with motion to allow him to apply for probation upon remand of
the case to the RTC.8 Petitioner invoked the case of Colinares v. People9
which allowed petitioner therein to apply for probation after his sentence was
later reduced on appeal by the Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner's
manifestation with motion.10 It was ruled that Colinares is inapplicable since
petitioner therein raised as sole issue the correctness of the penalty imposed
and claimed that the evidence presented warranted only a conviction for the
lesser offense. Instead, the appellate court viewed as appropriate the case
of Lagrosa v. People,11 wherein the application for probation was denied
because petitioners therein put in issue on appeal the merits of their
conviction and did not simply assail the propriety of the penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a
Resolution13 dated March 13, 2013; hence, this petition.
The petition should be denied.
1
At the outset, tracing the evolution of the present Probation Law is warranted
in order to better understand and apply the wisdom of its framers to cases
invoking its application.
In this jurisdiction, the concept of probation was introduced during the
American colonial period.14 For juvenile delinquents, Act No. 320315 was
enacted on December 3, 1924. It was later amended by Act Nos. 3309,16
3559,17 and 3725.18 As to offenders who are eighteen years old and above,
Act No. 422119 was passed by the legislature and took effect on August 7,
1935. Said Act allowed defendants who are convicted and sentenced by a
Court of First Instance or by the Supreme Court on appeal, except those
who are convicted of offenses enumerated in Section 8 thereof,20 to be
placed on probation upon application after the sentence has become final
and before its service has begun.21 However, We declared in People v.
Vera22 that Act No. 4221 is unconstitutional and void as it constitutes an
improper and unlawful delegation of legislative authority to the provincial
boards.
During the martial law period, then President Ferdinand E. Marcos issued
Presidential Decree (P.D.) No. 96823 on July 24, 1976. Originally, P.D. No.
968 allowed the filing of an application for probation at any time after the
defendant had been convicted and sentenced. Section 4 of which provides:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the
court may, after it shall have convicted and sentenced a defendant and upon
application at any time of said defendant, suspend the execution of said
sentence and place the defendant on probation for such period and upon
such terms and conditions as it may deem best.
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, with notice to the appellate court if an appeal has been taken
from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal. An order granting or denying probation shall not be appealable.24
Later, the filing of an application for probation pending appeal was still
allowed when Section 4 of P.D. No. 968 was amended by P.D. No. 125725
on December 1, 1977 by providing that such application may be made after
the defendant had been convicted and sentenced but before he begins to
serve his sentence. Thus:
SEC. 4. Grant of Probation. - Subject to the provisions of this Decree, the
court may, after it shall have convicted and sentenced a defendant but
before he begins to serve his sentence and upon his application, suspend
the execution of said sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing
of the application for probation and he may submit his comment on such
application within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of insolvency.
An application for probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the sentence of
conviction. The filing of the application shall be deemed a waiver of the right
to appeal, or the automatic withdrawal of a pending appeal. In the latter
case, however, if the application is filed on or after the date of the judgment
of the appellate court, said application shall be acted upon by the trial court
on the basis of the judgment of the appellate court.
An order granting or denying probation shall not be appealable.26
On October 5, 1985, Section 4 was subsequently amended by P.D. No.
1990.27 Henceforth, the policy has been to allow convicted and sentenced
defendant to apply for probation within the 15-day period for perfecting an
appeal. As modified, Section 4 of the Probation Law now reads:
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.
2

An order granting or denying probation shall not be appealable.28
The reason for the disallowance may be inferred from the preamble of P.D.
No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted
of offenses and who may be entitled to probation still appeal the judgment of
conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;cralawlawlibrary
WHEREAS, the process of criminal investigation, prosecution, conviction
and appeal entails too much time and effort, not to mention the huge
expenses of litigation, on the part of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating
and prosecuting accused persons from the lower courts up to the Supreme
Court, are oftentimes rendered nugatory when, after the appellate Court
finally affirms the judgment of conviction, the defendant applies for and is
granted probation;cralawlawlibrary
WHEREAS, probation was not intended as an escape hatch and should not
be used to obstruct and delay the administration of justice, but should be
availed of at the first opportunity by offenders who are willing to be reformed
and rehabilitated;cralawlawlibrary
WHEREAS, it becomes imperative to remedy the problems abovementioned
confronting our probation system[.]ChanRoblesVirtualawlibrary
Observing the developments in our Probation Law, the Court settled in
Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals that
it had established a prolonged but definite period during which an application
for probation may be granted by the trial court. That period was: "After [the
trial court] shall have convicted and sentenced a defendant but before he
begins to serve his sentence." Clearly, the cut-off time - commencement of
service of sentence - takes place not only after an appeal has been taken
from the sentence of conviction, but even after judgment has been rendered
by the appellate court and after judgment has become final. Indeed, in this
last situation, Section 4, as amended by P.D. No. 1257 provides that "the
application [for probation] shall be acted upon by the trial court on the basis
of the judgment of the appellate court"; for the appellate court might have
increased or reduced the original penalty imposed by the trial court, x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257, in its present
form, Section 4 establishes a much narrower period during which an
application for probation may be filed with the trial court: "after [the trial court]
shall have convicted and sentenced a defendant and - within the period for
perfecting an appeal -." As if to provide emphasis, a new proviso was
appended to the first paragraph of Section 4 that expressly prohibits the
grant of an application for probation "if the defendant has perfected an
appeal from the judgment of conviction." It is worthy of note too that Section
4 in its present form has dropped the phrase which said that the filing of an
application for probation means "the automatic withdrawal of a pending
appeal." The deletion is quite logical since an application for probation can
no longer be filed once an appeal is perfected; there can, therefore, be no
pending appeal that would have to be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of
petitioner's counsel and the dissenting opinion. We are unable to persuade
ourselves that Section 4 as it now stands, in authorizing the trial court to
grant probation "upon application by [the] defendant within the period for
perfecting an appeal" and in reiterating in the proviso that
"no application for probation shall be entertained or granted if the defendant
has perfected an appeal from the judgment of conviction."
did not really mean to refer to the fifteen-day period established, as indicated
above, by B.P. Big. 129, the Interim Rules and Guidelines Implementing B.P.
Big. 129 and the 1985 Rules on Criminal Procedure, but rather to some
vague and undefined time, i.e., "the earliest opportunity" to withdraw the
defendant's appeal. The whereas clauses invoked by petitioner did not, of
course, refer to the fifteen-day period. There was absolutely no reason why
they should have so referred to that period for the operative words of Section
4 already do refer, in our view, to such fifteen-day period. Whereas clauses
do not form part of a statute, strictly speaking; they are not part of the
operative language of the statute. Nonetheless, whereas clauses may be
3
helpful to the extent they articulate the general purpose or reason underlying
a new enactment, in the present case, an enactment which drastically but
clearly changed the substantive content of Section 4 existing before the
promulgation of P.D. No. 1990. Whereas clauses, however, cannot control
the specific terms of the statute; in the instant case, the whereas clauses of
P.D. No. 1990 do not purport to control or modify the terms of Section 4 as
amended. Upon the other hand, the term "period for perfecting an appeal"
used in Section 4 may be seen to furnish specification for the loose
language "first opportunity" employed in the fourth whereas clause.
"Perfection of an appeal" is, of course, a term of art but it is a term of art
widely understood by lawyers and judges and Section 4 of the Probation
Law addresses itself essentially to judges and lawyers. "Perfecting an
appeal" has no sensible meaning apart from the meaning given to those
words in our procedural law and so the law-making agency could only have
intended to refer to the meaning of those words in the context of procedural
law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation
Law was amended precisely to put a stop to the practice of appealing from
judgments of conviction even if the sentence is probationable, for the
purpose of securing an acquittal and applying for the probation only if the
accused fails in his bid.32 The Probation Law "expressly requires that an
accused must not have appealed his conviction before he can avail himself
of probation. This outlaws the element of speculation on the part of the
accused - to wager on the result of his appeal -that when his conviction is
finally affirmed on appeal, the moment of truth well nigh at hand and the
service of his sentence inevitable, he now applies for probation as an
'escape hatch,' thus rendering nugatory the appellate court's affirmance of
his conviction."33
Verily, Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for
perfecting an appeal. The need to file it within such period is intended to
encourage offenders, who are willing to be reformed and rehabilitated, to
avail themselves of probation at the first opportunity.34 If the application for
probation is filed beyond the 15-day period, then the judgment becomes final
and executory and the lower court can no longer act on the application for
probation. On the other hand, if a notice of appeal is perfected, the trial court
that rendered the judgment of conviction is divested of any jurisdiction to act
on the case, except the execution of the judgment when it has become final
and executory.
In view of the latest amendment to Section 4 of the Probation Law that "no
application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction," prevailing
jurisprudence35 treats appeal and probation as mutually exclusive remedies
because the law is unmistakable about it.36 Indeed, the law is very clear and
a contrary interpretation would counter its envisioned mandate. Courts have
no authority to invoke "liberal interpretation" or "the spirit of the law" where
the words of the statute themselves, and as illuminated by the history of that
statute, leave no room for doubt or interpretation.37 To be sure, the remedy
of convicted felons who want to avail of the benefits of probation even after
the remedy of an appeal is to go to the Congress and ask for the
amendment of the law. To surmise a converse construal of the provision
would be dangerously encroaching on the power of the legislature to enact
laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion in
Colinares38 the application of the Probation Law in the said case deserves a
second hard look so as to correct the mistake in the application of the law in
that particular case and in similar cases which will be filed before the courts
and inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty
beyond what is allowed by the Probation Law, albeit erroneously, the
accused was deprived of his choice to apply for probation and instead was
compelled to appeal the case. The reprehensible practice intended to be
avoided by the law was, therefore, not present when he appealed the trial
court's decision. Taking into account that the accused argued in his appeal
that the evidence presented against him warranted his conviction only for
attempted, not frustrated, homicide, the majority of the Court opined that the
accused had purposely sought to bring down the impossible penalty in order
to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not
have been allowed the benefit of probation. As I have previously stated and
insisted upon, probation is not a right granted to a convicted offender; it is a
special privilege granted by the State to a penitent qualified offender,39 who
does not possess the disqualifications under Section 9 of P.D. No. 968, as
amended.40 Likewise, the Probation Law is not a penal law for it to be
liberally construed to favor the accused.41
4
In the American law paradigm, probation is considered as an act of
clemency and grace, not a matter of right.42 It is a privilege granted by the
State, not a right to which a criminal defendant is entitled.43 In City of
Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or
verdict of guilty, is a rehabilitative measure and, as such, is not a matter of
right but is a matter of grace, privilege, or clemency granted to the
deserving.ChanRoblesVirtualawlibrary
As such, even in the American criminal justice model, probation should be
granted only to the deserving or, in our system, only to qualified "penitent
offenders" who are willing to be reformed and rehabilitated. Corollarily, in this
jurisdiction, the wisdom behind the Probation Law is outlined in its stated
purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him
with individualized treatment;cralawlawlibrary
(b) provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45ChanRoblesVirtualawlibrary
As I have previously indicated in Colinares, if this Court will adopt as
jurisprudential doctrine the opinion that an accused may still be allowed to
apply for probation even if he has filed a notice of appeal, it must be
categorically stated that such appeal must be limited to the following
grounds:
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused
to apply for probation; and
2. When the appeal is merely intended to review the crime for which the
accused was convicted and that the accused should only be liable to the
lesser offense which is necessarily included in the crime for which he was
originally convicted and the proper penalty imposable is within the
probationable period.
In both instances, the penalty imposed by the trial court for the crime
committed by the accused is more than six years; hence, the sentence
disqualifies the accused from applying for probation. The accused should
then be allowed to file an appeal under the afore-stated grounds to seek a
review of the crime and/or penalty imposed by the trial court. If, on appeal,
the appellate court finds it proper to modify the crime and/or the penalty
imposed, and the penalty finally imposed is within the probationable period,
the accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds enumerated
above, the accused should first file a motion for reconsideration of the
decision of the trial court anchored on the above-stated grounds and
manifest his intent to apply for probation if the motion is granted. The motion
for reconsideration will give the trial court an opportunity to review and rectify
any errors in its judgment, while the manifestation of the accused will
immediately show that he is agreeable to the judgment of conviction and
does not intend to appeal from it, but he only seeks a review of the crime
and/or penalty imposed, so that in the event that the penalty will be modified
within the probationable limit, he will immediately apply for probation.
Without such motion for reconsideration, the notice of appeal should be
denied outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was denied by the
trial court;cralawlawlibrary
(2) that the appeal is only for reviewing the penalty imposed by the lower
court or the conviction should only be for a lesser crime necessarily included
in the crime charged in the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from the
judgment of conviction, which involves a review of the merits of the case and
the determination of whether the accused is entitled to acquittal. However,
under the recommended grounds for appeal which were enumerated earlier,
the purpose of the appeal is not to assail the judgment of conviction but to
question only the propriety of the sentence, particularly the penalty imposed
or the crime for which the accused was convicted, as the accused intends to
apply for probation upon correction of the penalty or conviction for the lesser
offense. If the CA finds it proper to modify the sentence, and the penalty
finally imposed by the appellate court is within the probationable period, or
the crime for which the accused is eventually convicted imposes a
5
probationable penalty, application for probation after the case is remanded to
the trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do not contravene
Section 4 of the Probation Law, which expressly prohibits only an appeal
from the judgment of conviction. In such instances, the ultimate reason of
the accused for filing the appeal based on the afore-stated grounds is to
determine whether he may avail of probation based on the review by the
appellate court of the crime and/or penalty imposed by the trial court.
Allowing the afore-stated grounds for appeal would give an accused the
opportunity to apply for probation if his ground for appeal is found to be
meritorious by the appellate court, thus, serving the purpose of the Probation
Law to promote the reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the
following instances:
1. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the probationable period or a fine, and the accused
files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his
conviction in issue, even if there is an alternative prayer for the correction of
the penalty imposed by the trial court or for a conviction to a lesser crime,
which is necessarily included in the crime in which he was convicted where
the penalty is within the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the
Probation Law prohibits granting an application for probation if an appeal
from the sentence of conviction has been perfected by the accused.
In this case, petitioner appealed the trial court's judgment of conviction
before the CA alleging that it was error on the part of the RTC to have found
him guilty of violating Section 5(b), Article III of R.A. No. 7610. He argued
that the RTC should not have given much faith and credence to the
testimony of the victim because it was tainted with inconsistencies.
Moreover, he went on to assert that even assuming he committed the acts
imputed on him, still there was no evidence showing that the lascivious acts
were committed without consent or through force, duress, intimidation or
violence because the victim at that time was in deep slumber. It is apparent
that petitioner anchored his appeal on a claim of innocence and/or lack of
sufficient evidence to support his conviction of the offense charged, which is
clearly inconsistent with the tenor of the Probation Law that only qualified
penitent offender are allowed to apply for probation. The CA, therefore, did
not err in applying the similar case of Lagrosa v. People46 wherein the
protestations of petitioners therein did not simply assail the propriety of the
penalties imposed but meant a profession of guiltlessness, if not complete
innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply
for probation he should have admitted his guilt and buttressed his appeal on
a claim that the penalty imposed by the RTC was erroneous or that he is
only guilty of a lesser offense necessarily included in the crime for which he
was originally convicted. Unfortunately for him, he already perfected his
appeal and it is late in the day to avail the benefits of probation despite the
imposition of the CA of a probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of
Lasciviousness under Article 336 of the RPC, such conclusion clearly
contravenes the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of
Section 5(b), Article III of R.A. No. 7610 based on the complaint of a sixteen
(16)-year-old girl for allegedly molesting her by touching her breast and
vagina while she was sleeping. The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. - Children, whether male
or female, who for money, profit, or any other consideration or due to the
coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua
shall be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct
with a child exploited in prostitution or subject to other sexual abuse;
Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
6
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period; x x x (Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious conduct.
2. The said act is performed with a child exploited in prostitution or subjected
to sexual abuse.
3. The child, whether male or female, is below 18 years of age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to
other sexual abuse when he or she indulges in lascivious conduct under the
coercion or influence of any adult.48 This statutory provision must be
distinguished from Acts of Lasciviousness under Articles 336 and 339 of the
RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the
following elements:
(1) That the offender commits any act of lasciviousness or
lewdness;cralawlawlibrary
(2) That it is done under any of the following circumstances:
By using force or intimidation; or
When the offended party is deprived of reason or otherwise unconscious; or
When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness committed
with the consent of the offended party if done by the same persons and
under the same circumstances mentioned in Articles 337 and 338 of the
RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen years
of age by any person in public authority, priest, home-servant, domestic,
guardian, teacher, or any person who, in any capacity, shall be entrusted
with the education or custody of the woman; or
2. if committed by means of deceit against a woman who is single or a
widow of good reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of
age and under eighteen (18) years of age, the accused shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the victim
is a virgin and consents to the lascivious acts through abuse of confidence or
when the victim is single or a widow of good reputation and consents to the
lascivious acts through deceit, or;cralawlawlibrary
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is not
covered by lascivious conduct as defined in R.A. No. 7610. In case the acts
of lasciviousness is covered by lascivious conduct under R.A. No. 7610 and
it is done through coercion or influence, which establishes absence or lack of
consent, then Art. 336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent on
the part of the victim to the lascivious conduct, which was done through the
employment of coercion or influence. The offender may likewise be liable for
sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18) years
and she is unable to fully take care of herself or protect herself from abuse,
neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into
another person's mouth or anal orifice, or any instrument or object, into the
genital or anal orifice of another person if the victim did not consent either it
was done through force, threat or intimidation; or when the victim is deprived
of reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a form of rape.
However, in instances where the lascivious conduct is covered by the
definition under R.A. No. 7610, where the penalty is reclusion temporal
medium, and the act is likewise covered by sexual assault under Article 266-
A, paragraph 2 of the RPC, which is punishable by prision mayor, the
offender should be liable for violation of Section 5(b), Article III of R.A. No.
7610, where the law provides for the higher penalty of reclusion temporal
medium, if the offended party is a child victim. But if the victim is at least
eighteen (18) years of age, the offender should be liable under Art. 266-A,
par. 2 of the RPC and not R.A. No. 7610, unless the victim is at least
eighteen (18) years and she is unable to fully take care of herself or protect
herself from abuse, neglect, cruelty, exploitation or discrimination because of
a physical or mental disability or condition, in which case, the offender may
still be held liable for sexual abuse under R.A. No. 7610.
7
There could be no other conclusion, a child is presumed by law to be
incapable of giving rational consent to any lascivious act, taking into account
the constitutionally enshrined State policy to promote the physical, moral,
spiritual, intellectual and social well-being of the youth, as well as, in
harmony with the foremost consideration of the child's best interests in all
actions concerning him or her.51 This is equally consistent with the with the
declared policy of the State to provide special protection to children from all
forms of abuse, neglect, cruelty, exploitation and discrimination, and other
conditions prejudicial to their development; provide sanctions for their
commission and carry out a program for prevention and deterrence of and
crisis intervention in situations of child abuse, exploitation, and
discrimination.52 Besides, if it was the intention of the framers of the law to
make child offenders liable only of Article 266-A of the RPC, which provides
for a lower penalty than R.A. No. 7610, the law could have expressly made
such statements.
As correctly found by the trial court, all the elements of sexual abuse under
Section 5(b), Article III of R.A. No. 7610 are present in the case at bar.
First, petitioner's lewd advances of touching the breasts and vagina of his
hapless victim constitute lascivious conduct as defined in Section 32, Article
XIII of the Implementing Rules and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks, or the introduction of any object
into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.53
Second, petitioner clearly has moral ascendancy over the minor victim not
just because of his relative seniority but more importantly due to the
presumed presence of mutual trust and confidence between them by virtue
of an existing employment relationship, AAA being a domestic helper in
petitioner's household. Notably, a child is considered as sexually abused
under Section 5(b) of R.A. No. 7610 when he or she is subjected to
lascivious conduct under the coercion or influence of any adult. Intimidation
need not necessarily be irresistible. It is sufficient that some compulsion
equivalent to intimidation annuls or subdues the free exercise of the will of
the offended party.54 The law does not require physical violence on the
person of the victim; moral coercion or ascendancy is sufficient.55 On this
point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when
a child indulges in sexual intercourse or any lascivious conduct due to the
coercion or influence of any adult, the child is deemed to be a "child
exploited in prostitution and other sexual abuse." In this manner, the law is
able to act as an effective deterrent to quell all forms of abuse, neglect,
cruelty, exploitation and discrimination against children, prejudicial as they
are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious
conduct under the coercion or influence of any adult exists when there is
some form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party's free will. Corollary thereto, Section 2(g) of
the Rules on Child Abuse Cases conveys that sexual abuse involves the
element of influence which manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion of a
child to engage in, or assist another person to engage in, sexual intercourse
or lascivious conduct or the molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or trust in
any way that deprives a person of free will and substitutes another's
objective." Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields
it."57ChanRoblesVirtualawlibrary
Finally, the victim is 16 years of age at the time of the commission of the
offense. Under Section 3 (a) of R.A. No. 7610, "children" refers to "persons
below eighteen (18) years of age or those over but unable to fully take care
of themselves or protect themselves from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition."
The decision of the trial court finding the petitioner guilty of Violation of
Section 5(b), Article III R.A. No. 7610 should have been upheld by the CA
instead of erroneously adopting the recommendation of the OSG, which
inaccurately relied on People v. Abello.58 In said case, the decisive factor for
the acquittal of the accused was not the absence of coercion or intimidation
on the offended party, who was then sleeping at the time the lascivious act
8
was committed, but the fact that the victim could not be considered as a
"child" under R.A. No. 7610. This Court held that while the twenty-one year
old woman has polio as a physical disability that rendered her incapable of
normal function, the prosecution did not present any testimonial or
documentary evidence - any medical evaluation or finding from a qualified
physician, psychologist or psychiatrist - attesting that the physical condition
rendered her incapable of fully taking care of herself or of protecting herself
against sexual abuse.
Thus, it is clear that petitioner could not have been entitled to apply for
probation in the first place. Regrettably, since neither the accused nor the
OSG questioned the CA Decision, it has attained finality and to correct the
error at this stage is already barred by the right of the accused against
double jeopardy.
Based on the above disquisitions, the petitioner should be denied the benefit
of the Probation Law and that the Court should adopt the recommendations
above-stated in situations where an accused files an appeal for the sole
purpose of correcting the penalty imposed to qualify him for probation or
where he files an appeal specifically claiming that he should be found guilty
of a lesser offense necessarily included with the crime originally filed with a
prescribed penalty which is probationable.
SO ORDERED.
DISSENTING OPINION
VELASCO, JR., J.:
When the law does not qualify, We should not qualify.1
For resolution is the recurring question of whether an appellate court's
downgrading of a convict's offense or penalty - from a non-probationable to a
probationable one - subsequently entitles the accused to apply for the
privilege of probation in spite of his prior perfection of an appeal. Ultimately,
this issue boils down to the interpretation of Section 4 of Presidential Decree
(PD) No. 968, otherwise known as the Probation Law of 1976, as amended
by PD No. 1990.2 The provision pertinently reads:
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 perfected the appeal from the judgment of conviction,
(emphasis ours)
Initially, the Court strictly interpreted the provision as barring the convicted
felon from applying for probation if he opted to resort to filing an appeal.3
The rationale behind the disqualification was enunciated by the Court in
Francisco v. Court of Appeals, thus:
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise eligible
convict to immediately admit his liability and save the state of time, effort and
expenses to jettison an appeal. The law expressly requires that an accused
must not have appealed his conviction before he can avail of probation. This
outlaws the element of speculation on the part of the accused to wager on
the result of his appeal that when his conviction is finally affirmed on
appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an "escape hatch" thus
rendering nugatory the appellate court's affirmance of his conviction.
Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse.4 (emphasis ours)
So it was held that perfecting an appeal automatically disqualifies a
convicted offender from availing of the benefits of the Probation Law,
9
regardless of the grounds invoked in the appeal lodged, and of whether or
not the appeal resulted in the downward modification of the offense or the
penalty imposed from a non-probationable to a probationable one.
This reading of the afore-quoted proviso, however, has repeatedly been
debated upon in various cases of differing factual settings.5 And in these
cases, the Court constantly entertained the prospect of abandoning, if not
substantially modifying, this rigid interpretation to allow a penitent offender to
apply for probation if he only became qualified to apply for the benefits under
the law after an appellate court downgraded his offense or the penalty
meted.
It will not be until December of 2011, in Colinares v. People,6 when the Court
would take a different posture in interpreting Sec. 4 of PD No. 968, as
amended.
In Colinares, the Court was emphatic in its position that the error of a lower
court should not deprive the offender of the opportunity to seek the privilege
of probation. In the words of the ponencia therein, "[a]ng kabayo ang
nagkasala, ang hagupit ay sa kalabaw (The horse errs, the carabao gets the
whip)."7 Thus, in the face of strong dissent, the majority rejected the
traditional interpretation of Sec. 4 and refused to read the provision as
prohibiting the offender from applying for the benefit of probation if the
appeal was made when the privilege of probation is not yet available.8
As held in Colinares, the appellate court's downward modification of the
penalty meted, from a non-probationable to a probationable one, amounted
to an original conviction for a probationable penalty. Under such
circumstance, the Court held that the offender should still be allowed to
apply for the privilege of probation in spite of his prior perfection of an appeal
because the appeal was made at a time when he was not yet a qualified
offender. In other words, therein offender has not yet lodged an appeal from
the original judgment of conviction of a probationable penalty, qualifying him
to apply for probation under Sec. 4.
Regrettably, several members of the Court remain reluctant in adopting this
novel interpretation in Colinares, continually reasoning that the wording of
the proviso is clear and leaves no room for interpretation, and arguing that
the Probation Law is not a penal statute that must be construed liberally in
favor of the accused.9 As in the case at bar, instead of applying squarely the
teaching in Colinares, the majority deviated therefrom and needlessly
imposed additional restrictions before one could avail of the benefits under
the Probation Law.
The ponencia ruled herein that for the accused to be allowed to apply for
probation even if he has filed an appeal, the appeal should be anchored only
on the following grounds:
When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which, when corrected, would entitle the
accused to apply for probation; and
When the appeal is merely intended to review the crime for which the
accused was convicted and that the accused should only be liable for the
lesser offense which is necessarily included in the crime for which he was
originally convicted and the proper penalty imposable is within the
probationable period.
The majority is, in effect, affirming Colinares in making the grant of probation
allowable even after appeal, to which I agree. The similarity between the
interpretations of Sec. 4 in Colinares and in the disposition of this case,
however, ends here. Meanwhile, divergence arises from the varying analysis
of the phrase "appeal from the judgment of conviction," which is a basis for
disqualification under Sec. 4. Here, the majority puts premium on the
grounds invoked in the "appeal" adverted to, in that the appeal should not
question the finding of guilt and should not insist on the defendant's
acquittal, regardless of the penalty imposed and the crime the offender is
convicted of. In contrast, Colinares deems more significant the "judgment of
conviction," rendering the grounds the appeal was anchored on immaterial.
Instead, what is of primordial consideration in Colinares was whether or not
the defendant was convicted of a probationable offense or was meted a
probationable penalty. If not, the defendant will still be allowed to appeal his
conviction on any ground, without losing the right to apply for probation in
the event that the appellate court reclassifies his offense or downgrades his
sentence to a probationable one.
Of the two interpretations, I respectfully submit that the Court's holding in
Colinares should be sustained. Therefore, I register my vote to GRANT the
instant petition.
10
With all due respect to my colleagues, allow me to express my reservations
on the Court's imposition of prerequisites before an offender may avail of the
benefits of the Probation Law.
Firstly, the conditions imposed by the majority run counter to the spirit of the
Probation Law.
Recall the wording of the provision:
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 perfected the appeal from the judgment of conviction.
Sec. 4 clearly commands that "no application for probation shall be
entertained or granted if the defendant perfected the appeal from the
judgment of conviction.'" At first blush, there is nothing vague in the provision
that calls for judicial interpretation. The provision, as couched, mandates that
the perfection of an appeal disqualifies an otherwise qualified offender from
applying for probation.
Nevertheless, I fully concur with the Court's ruling in Colinares that the bar
must be applied only to offenders who were already qualified to apply for
probation but opted to file an appeal instead. An otherwise rigid application
of the rule would defeat the very purpose of the Probation Law, which is
giving a qualified penitent offender the opportunity to be placed on probation
instead of being incarcerated. The preambulatory clause of PD No. 1990
says as much:
WHEREAS, it has been the sad experience that persons who are convicted
of offenses and who may be entitled to probation still appeal the judgment of
conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed; xxx. (emphasis ours)
Verily, the clause uses the conjunctive word "and" in qualifying the type of
offenders to whom the amendment applies. Unmistakably, it refers not
simply to convicted offenders in general, but more specifically to qualified
convicted offenders. What PD No. 1990 then contemplates and seeks to
address is the situation where qualified convicted offenders showed lack of
repentance by appealing their conviction instead of admitting their guilt and
asking for the State's graciousness and liberality by applying for the privilege
of probation.
This supports the majority opinion in Colinares that the disqualification under
Sec. 4 does not cover a formerly disqualified convicted offender who later on
becomes qualified to apply for probation by reason of a partially meritorious
appeal, sustaining the conviction but for a lesser offense or penalty. To
reiterate, the reduction of the penalty imposed in Colinares, from a non-
probationable to a probationable one, amounted to an original conviction
from which no appeal has yet been taken, and thereby qualifies the
convicted felon to apply for probation under the law.
Unlike this modification in the interpretation of Sec. 4 of PD No. 968 that was
introduced in Colinares, the ponencia's, imposition of additional restrictions
for availing of the benefits under the Probation Law is not in keeping with the
spirit of the law. To recall, the ponencia intimates that the added restrictions
are based on the argument that what is prohibited under the Probation Law
is challenging the judgment of conviction, which, in the majority's posture, is
the finding of guilt, without distinction on whether the penalty imposed is
probationable or not. According to the majority, the accused may still lodge
an appeal and qualify for probation if the appeal is limited to praying for the
reduction of the penalty imposed or downgrading the crime he is convicted
of, and should in no way insist on his innocence. With these requirements in
place, the majority effectively would want the accused to change his theory
of the case and belatedly plead guilty on appeal to a lesser offense, akin to a
last minute plea-bargain.
The problem here is that the ponencia's interpretation is tantamount to
forcing the accused to already forego appealing for his acquittal at a time
that probation is not yet available. This goes against the rationale of the law,
which seeks to discourage from appealing only those who are, in the first
place, already qualified to apply for probation, but waste the opportunity by
insisting on their innocence. What is more, the ponencia's restrictive
proposition would lead to a baffling result - the very appeal that would have
qualified the convicted felon to apply for probation (i.e., the appeal that
resulted in the downgrading of the offense or the reduction of the penalty to
a probationable one) would also be the very same appeal that would
disqualify him from availing thereof.
11
More on this first point, recall that the Probation Law was enacted for the
following reasons:
WHEREAS, one of the major goals of the government is to establish a more
enlightened and humane correctional system that will promote the
reformation of offenders and thereby reduce the incidence of
recidivism;cralawlawlibrary
WHEREAS, the confinement of all offenders in prisons and other institutions
with rehabilitation programs constitutes an onerous drain on the financial
resources of the country; and
WHEREAS, there is a need to provide a less costly alternative to the
imprisonment of offenders who are likely to respond to individualized,
community-based treatment programs;
On the basis thereof, PD No. 968 commands that it shall be interpreted as
to:
(a) Promote the correction and rehabilitation of an offender by providing him
with individualized treatment;cralawlawlibrary
(b) Provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence; and
(c) Prevent the commission of offenses.10
Now, relate the legislature's above-stated rationale of the Probation Law to
the preambulatory clauses of PD No. 1990, which introduced the
amendment removing the allowance of probation after the already qualified
offender appealed his conviction, to wit:
WHEREAS, it has been the sad experience that persons who are convicted
of offenses and who may be entitled to probation still appeal the judgment of
conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, conviction
and appeal entails too much time and effort, not to mention the huge
expenses of litigation, on the part of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating
and prosecuting accused persons from the lower courts up to the Supreme
Court, are oftentimes rendered nugatory when, after the appellate Court
finally affirms the judgment of conviction, the defendant applies for and is
granted probation;cralawlawlibrary
WHEREAS, probation was not intended as an escape hatch and should not
be used to obstruct and delay the administration of justice, but should be
availed of at the first opportunity by offenders who are willing to be reformed
and rehabilitated;cralawlawlibrary
WHEREAS, it becomes imperative to remedy the problems above-
mentioned confronting our probation system;11 (emphasis ours)
As can be gleaned, the declared purposes of the Probation Law and its
amendatory law all echo the State's inclination towards a rehabilitative, as
opposed to a punitive, system. In fact, the proviso that the perfection of an
appeal disqualifies the offender from applying for probation is to ensure that
the privilege of probation is extended only to penitent qualified offenders,
those the state deems to have the potential to be rehabilitated.
In ascertaining an offender's penitence, the Court has repeatedly held that
the qualified offender's perfection of an appeal questioning his conviction,
instead of beseeching the State's generosity through an application for
probation at the first opportunity, is antithetical to remorse and penitence.
Bear in mind, though, that the amendment was prompted by the State's past
experience where qualified offenders "wager" their chances and still seek an
acquittal, only to invoke the privilege of probation when it is almost certain
that they would not be found innocent. It would, therefore, be erroneous to
apply the same principle to offenders who are not qualified, those who had
no opportunity, to seek the privilege in the first place. We cannot expect
them to immediately show remorse via applying for probation, putting their
right to appeal on the line in so doing, when they are not even qualified for
the privilege under the law. In their case, there is no wager and no "first
opportunity" to apply for probation to speak off, but a clear lack of option on
the part of the offenders. They had no other choice but to appeal.
Secondly, the majority's imposition of said conditions is in violation of the
constitutionally-mandated separation of powers underlying the very
existence of the government.
Well-entrenched is the rule that the primordial duty of the Court is merely to
apply the law in such a way that it does not usurp legislative powers by
12
judicial legislation.12 Thus, 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.13 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.14
To hold, in the case at bar, that a formerly disqualified offender who only
became qualified for probation after judgment by an appellate court is still
disqualified from applying for the privilege is tantamount to amending the law
via judicial interpretation. With the Court's disposition of the instant petition,
the majority is effectively placing additional qualifications and grounds for
disqualification that not only cannot be found anywhere in the four corners of
the statute, but, worse, defeat the very purpose for which the Probation Law
was enacted.
Had the Probation Law intended the exclusion of formerly disqualified
offenders from those who may avail of the privilege, then it would have
included such exclusion in the list of disqualified offenders under Sec. 9 of
PD No. 968, as amended, which, in its entirety, reads:
Sec. 9. Disqualified Offenders. - The benefits of this Decree shall not be
extended to those:chanRoblesvirtualLawlibrary
(a) sentenced to serve a maximum term of imprisonment of more than six
years;cralawlawlibrary
(b) convicted of subversion or any crime against the national security or the
public order;cralawlawlibrary
(c) who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos.
(d) who have been once on probation under the provisions of this Decree;
and
(e) who are already serving sentence at the time the substantive provisions
of this Decree became applicable pursuant to Section 33
hereof.ChanRoblesVirtualawlibrary
These disqualifications listed under Sec. 9 should be differentiated from the
disqualification under Sec. 4. Sec. 9 enumerates the legal bars from
acquiring the eligibility to apply for probation. Meanwhile, the Sec. 4 proviso
states the manner on how one loses the eligibility to apply for probation
which he already possesses. To interpret here then that an offender who is
not yet qualified to apply for probation may be prejudiced by the grounds he
would raise in his appeal would mean amending Sec. 9 so as to include
those who have raised their guilt as an issue on appeal.
This unwarranted judicial amendment to the law violates the fundamental
maxim "expressio unius est exclusio alterius." The express mention of one
person, thing, act, or consequence excludes all others. Thus, where a
statute, by its terms, is expressly limited to certain matters, it may not, by
interpretation or construction, be extended to others. This rule is based on
the premise that the legislature would not have made specified
enumerations in a statute had the intention been not to restrict its meaning
and to confine its terms to those expressly mentioned.15
Moreover, the ponencia, in its postulation, basically legislates the timeframe
for an offender's penitence. The ponencia is virtually sending a message to
convicted felons that they should already be penitent even before they are
qualified to apply for probation to be allowed to avail of the privilege in the
off-chance that the penalty meted on them is reduced or the crime they are
convicted of is downgraded on appeal.
We have to consider though that it is only natural for a person charged with a
crime, subjected to a highly adversarial process, and going up against the
"People of the Philippines" in litigation, to be on the defensive and insist on
his innocence rather than readily sacrifice his liberty in gambling for a mere
probability of becoming eligible for, not necessarily entitled to, probation.
This does not mean, however, that he who is guilty but denies the
commission of the crime even after having been convicted by the trial court
will never ever regret having committed the offense. For his perceived lack of
option, a litigant may be compelled to appeal his conviction, without
necessarily making him any less repentant later on. It would not come as a
surprise if it will only be after his appeal is heard, after the penalty imposed
upon him is lessened or after his crime was downgraded, after a window of
opportunity to receive a second lease in life opens, would his penitence be
manifest in his pleadings, would he apply for probation, and would he no
longer pursue the case or push his luck.
As explained, insisting on proving one's innocence is an understandable
natural human behavior. It is not, at all times and in all cases, proof of
depravity. In the same way, the observance of the proposed restrictions,
13
which are supposedly intended to ensure that only penitent offenders are
allowed to apply for the privilege of probation, cannot guarantee that the
person invoking the limited grounds on appeal is, in fact, remorseful.
Furthermore, one cannot expect an offender to be, in all cases, impelled by
remorse in applying for the probation instead of appealing, for it may be that
he sacrificed his right to fight for his innocence out of fear of losing the
privilege if he makes any further attempt thereat.
Fortunately, the grant of the privilege is entirely different from the right to
apply for its grant.16Consider, too, that the grant is discretionary upon the
trial court, hence the use of the word "may."17 Thus, there are other means
by which the courts may determine whether the qualified offender is indeed
penitent or not, other than looking to the grounds on which his appeal was
hinged. The grounds raised in the appeal should then be immaterial. And
instead of restraining an erstwhile disqualified offender's right to appeal, the
Court should adopt an effective system for weeding out those who abuse the
State's generosity. This way, we can assist in the administration of the
restorative justice that the Probation Law seeks to enforce without sacrificing
civil liberties or encroaching upon the power of the Legislative Branch. To
impose such restrictions on the filing of an appeal by the disqualified
convicted offender would, more often than not, result in injustice, rather than
promote the laudable purpose of the Probation Law.
Thirdly, following Colinares, the "judgment of conviction" referred to in Sec. 4
from which no appeal should be taken should, as earlier stressed, be
understood to be the original conviction for a probationable penalty or
offense, and not simply to the trial court's first finding of guilt.
It may be tempting to interpret the phrase "judgment of conviction" to refer to
the trial court's finding of guilt since "trial court" was specifically mentioned in
Sec. 4, without any reference to appellate courts. This, however, does not
come as a shock. The trial court's mention, after all, comes naturally since,
as the court of origin,18 the suspension of the execution of the sentence and
the placing of the defendant on probation are just a few of its functions. The
first part of Sec. 4, thus, merely echoes the rule that the execution of
judgments19 and the resolution of an application for probation20 are the
duties of the trial courts, nothing more. It should not be construed in such a
way that the appeal being referred to in said Sec. 4 is that taken only from
the trial court to an appellate court as this is an entirely different matter.
To be clear, nowhere in the Probation Law does it provide that the "appeal"
from the judgment of conviction should be that made from the trial court to
the appellate court. Hence, the "appeal" could very well refer to any of the
three (3) opportunities to seek a review of a judgment of conviction in
criminal procedure: (a) questioning the judgments of the Municipal Trial
Court, Metropolitan Trial Court, Municipal Circuit Trial Court, and of the
Municipal Trial Court in Cities before the Regional Trial Court; (b) elevating
the case from the Regional Trial Court to the Court of Appeals; and (c) by
assailing the unfavorable Decision of the Court of Appeals to this Court
the court of last resort.21
Corollarily, it is submitted that the "judgment of conviction" should not be
taken to mean the initial finding of guilt, since, as maintained by the majority
in Colinares, an original judgment of conviction may also be handed down by
the appellate courts, especially when it involves the annulment or
modification of the trial court's decision. As discussed, the appellate court's
judgment convicting therein defendant, for the first time, of a probationable
crime or imposing upon him a probationable penalty should be treated as an
original conviction, entitling him to apply for probation in spite of perfecting
an appeal.22 The appeal lodged by the offender, which reduced his
conviction to a probationable one, in no way adversely affected his later-
acquired eligibility.
In line with the teachings in Colinares, the Court should view the appellate
court's judgment which effectively qualified the offender for probation as the
conviction from which the defendant should not appeal from if he wishes to
apply for the privilege of probation. This should be the case for the simple
reason that he has not yet questioned this second original conviction which
qualifies him for probation. To reiterate, what the law proscribes is the
application for probation by a defendant who has appealed his conviction for
a probationable crime or with a probationable penalty. This proscription
should, therefore, come in only when the offender has already been
convicted of a probationable crime or imposed a probationable penalty, not
when he was still disqualified for probation.
Fourthly, the adoption of the conditions set by the majority in the instant case
will result in a situation where We would be requiring from the defense
lawyer a degree of diligence that is less than that expected of him under our
Rules, at his client's expense.
14
To elucidate, We are all very much aware of a defense lawyer's duty to his
client in that:
xxx A lawyer engaged to represent a client bears the responsibility of
protecting the latter's interest with utmost diligence. It is his duty to serve his
client with competence and diligence, and he should exert his best efforts to
protect, within the bounds of the law, the interests of his client. A lawyer's
diligence and vigilance is more imperative in criminal cases, where the life
and liberty of an accused is at stake.23
Simply put, a defense lawyer is expected to advocate his client's innocence
in line with the principle deeply embedded in our legal system that an
accused is presumed innocent until proven guilty beyond reasonable doubt.
The lawyer owes "entire devotion to the interest of the client, warm zeal in
the maintenance and defense of his rights and the exertion of his utmost
learning and ability," to the end that nothing be taken or be withheld from the
latter, save by the rules of law, legally applied.24 Thus, unless and until his
client has been convicted with finality, we cannot expect his counsel to
detract, or even require him to detract from this duty, and convince his client
to simply admit guilt and either seek a reduction of the penalty imposed or
the downgrading of the crime he has been convicted of just so the client may
have a window of opportunity to apply for the privilege of probation if and
only if the appeal is granted. Instead, the client, in the judicial forum, should
be afforded the benefit of any and every remedy and defense that is
authorized by the law of the land, and he may expect his lawyer to assert
every such remedy or defense.25cralawred
Lastly, in rejecting the petitioner's plea that the Probation Law be liberally
construed in his favor, the Court ruled that PD 968 is not a penal law that
would warrant the application of the pro reo doctrine. The ruling was
premised on the instruction of the Court in Llamado v. Court of Appeals, viz:
Turning to petitioner's invocation of "liberal interpretation" of penal statutes,
we note at the outset that the Probation Law is not a penal statute. We,
however, understand petitioner's argument to be really that any statutory
language that appears to favor the accused in a criminal case should be
given a "liberal interpretation." Courts, however, have no authority to invoke
"liberal interpretation" or "the spirit of the law" where the words of the statute
themselves, and as illuminated by the history of that statute, leave no room
for doubt or interpretation. We do not believe that "the spirit of law" may
legitimately be invoked to set at naught words which have a clear and
definite meaning imparted to them by our procedural law. The "true
legislative intent" must obviously be given effect by judges and all others
who are charged with the application and implementation of a statute. It is
absolutely essential to bear in mind, however, that the spirit of the law and
the intent that is to be given effect are to be derived from the words actually
used by the law-maker, and not from some external, mystical or metajuridical
source independent of and transcending the words of the legislature.
The Court is not here to be understood as giving a "strict interpretation"
rather than a "liberal" one to Section 4 of the Probation Law of 1976 as
amended by P.D. No. 1990. "Strict" and "liberal" are adjectives which too
frequently impede a disciplined and principled search for the meaning which
the law-making authority projected when it promulgated the language which
we must apply. That meaning is clearly visible in the text of Section 4, as
plain and unmistakable as the nose on a man's face. The Court is simply
reading Section 4 as it is in fact written. There is no need for the involved
process of construction that petitioner invites us to engage in, a process
made necessary only because petitioner rejects the conclusion or meaning
which shines through the words of the statute. The first duty of a judge is to
take and apply a statute as he finds it, not as he would like it to be.26
This oft-cited ratio in supporting the continued refusal to reject the proposed
application of Sec. 4, however, must also be reconsidered since this cited
pronouncement of the Court actually deals with a different issue, albeit
pertaining to the same provision.
It bears noting that Llamado dealt with the issue of whether or not
petitioner's application for probation, which was filed after a notice of appeal
had been filed with the trial court, after the records of the case had been
forwarded to the Court of Appeals, after the Court of Appeals had issued the
notice to file Appellant's Brief, after several extensions of time to file
Appellant's Brief had been sought from and granted by the Court of Appeals,
but before actual filing of such brief, is barred under PD No. 968, as
amended.27 In essence, it dealt with the alleged establishment by the
amendment of a narrower period during which an application for probation
may be filed with the trial court. As the Court clarified:
In applying Section 4 in the form it exists today (and at the time petitioner
Llamado was convicted by the trial court), to the instant case, we must then
inquire whether petitioner Llamado had submitted his application for
probation "within the period for perfecting an appeal." Put a little differently,
15
the question is whether by the time petitioner Llamado's application was
filed, he had already "perfected an appeal" from the judgment of conviction
of the Regional Trial Court of Manila.28 (emphasis
ours)ChanRoblesVirtualawlibrary
A reading of Llamado reveals that the Court's refusal to liberally interpret
Sec. 4 actually referred to the phrase "period for perfecting an appeal" and
not the proviso being discussed in the present case. It was therein
petitioner's argument that:
xxx the phrase "period for perfecting an appeal" and the clause "if the
defendant has perfected an appeal from the judgment of conviction" found in
Section 4 in its current form, should not be interpreted to refer to Rule 122 of
the Revised Rules of Court; and that the "whereas" or preambulatory
clauses of P.D. No. 1990 did not specify a period of fifteen (15) days for
perfecting an appeal.3 It is also urged that "the true legislative intent of the
amendment (P.D. No. 1990) should not apply to petitioner who filed his
Petition for probation at the earliest opportunity then prevailing and withdrew
his appeal."29ChanRoblesVirtualawlibrary
which the Court flatly rejected for the ensuing reason:
We find ourselves unable to accept the eloquently stated arguments of
petitioner's counsel and the dissenting opinion. We are unable to persuade
ourselves that Section 4 as it now stands, in authorizing the trial court to
grant probation "upon application by [the] defendant within the period for
perfecting an appeal" and in reiterating in the proviso that
no application for probation shall be entertained or granted if the defendant
has perfected an appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period established, as indicated
above, by B.P. Big. 129, the Interim Rules and Guidelines Implementing B.P.
Blg. 129 and the 1985 Rules on Criminal Procedure, but rather to some
vague and undefined time, i.e., "the earliest opportunity" to withdraw the
defendant's appeal. The whereas clauses invoked by petitioner did not, of
course, refer to the fifteen-day period. There was absolutely no reason why
they should have so referred to that period for the operative words of Section
4 already do refer, in our view, to such fifteen-day period, xxxx Upon the
other hand, the term "period for perfecting an appeal" used in Section 4 may
be seen to furnish specification for the loose language "first opportunity"
employed in the fourth whereas clause. "Perfection of an appeal" is, of
course, a term of art but it is a term of art widely understood by lawyers and
judges and Section 4 of the Probation Law addresses itself essentially to
judges and lawyers. "Perfecting an appeal" has no sensible meaning apart
from the meaning given to those words in our procedural law and so the law-
making agency could only have intended to refer to the meaning of those
words in the context of procedural law.30 (emphasis ours)
With the above, it is evident that when this Court pronounced in Llamado its
refusal to liberally apply Sec. 4 of the Probation Law, as amended, it was
doing so within the context of interpreting the phrase "period for perfecting
an appeal," which, as we all know, has a definite meaning in procedural law.
It is therefore, understandable why the Court, in Llamado, rejected therein
petitioner's request for a liberal interpretation of the phrase.
In conclusion, it is simply incorrect for the Court to interpret Sec. 4 as
prohibiting the defendant from arguing for his acquittal at a time that the
privilege of probation is not yet available to him. To follow the ponencia's
interpretation would lead to a scenario wherein the Court would be
subjecting disqualified offenders to the requirements of applying for
probation in spite of their patent ineligibility (by reason of the penalty
imposed or the categorization of the offense).
The more precise interpretation, therefore, would be to grant this opportunity
to apply for probation when the accused is originally convicted for a
probationable offense or sentenced to suffer a probationable penalty, without
distinction on whether the said "original conviction" was issued by the trial
court or appellate court. What is material is that the application for the
privilege of probation be made at the first opportunity, which is the period to
appeal from when the offender first became qualified for the privilege. For
how can we say that the convicted offender wagered for an acquittal on
appeal instead of applying for probation when he is not qualified to avail of
the benefits of the Probation Law in the first place? He simply had no other
option at that point.
As in Colinares, petitioner in this case became qualified for probation only
after the appellate court modified the trial court's ruling. If, notwithstanding
this downward modification of the penalty imposed or the crime the accused
is convicted of, the now qualified defendant still appeals his new conviction
on whatever ground, then, this would be the time when his appeal would bar
him from applying for the privilege under Sec. 4.
16
While it is true that there is a risk that the abuse of the State's generosity by
convicted offenders may still persist because of Colinares, we should not,
however, deprive all accused persons, whether guilty or not, the opportunity
to defend themselves and their liberty and to prove their case, lest we run
the risk of forcing innocent persons to forego their liberty simply because
applying for probation is easier than proving their innocence. To me, this
might, more often than not, result in a failure of justice rather than its
administration.
In view of the foregoing disquisitions, I reiterate my vote to GRANT the
instant petition.
DISSENTING OPINION
MENDOZA, J.:
In this petition for review on certiorari, petitioner Mustapha Dimakuta y
Maruhon @ Boyet (Mustapha) seeks to reverse and set aside the
September 3, 20121 and March 13, 20132 Resolutions of the Court of
Appeals (CA), in CA-G.R. CR No. 31963, which denied his motion that he be
entitled to probation.
In the decision of the majority, the petition reversed its ruling in Colinares v.
People3 and denied the subject petition.
With due respect to the learned ponente of the case, I dissent.
The Antecedents:
Petitioner Mustapha was charged with the offense of Violation of Section
5(b), Article III of Republic Act (R.A.) No. 7610, otherwise known as the
Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act, filed before the Regional Trial Court, Branch 199, Las
Pifias City, (RTC) docketed therein as Criminal Case No. 05-1098, for
committing a lascivious conduct upon a 16-year old complainant.
To prove its accusation, the prosecution presented private complainant AAA,
Department of Social Welfare and Development Social Worker (DSWD)
Arleen Bibit, and PO1 Toledo I. Mauricio, Jr., as its witnesses. The defense,
on the other hand, presented Mustapha and Allan Dimakuta to substantiate
its claim of his innocence. Mustapha denied the accusation and claimed that
AAA merely concocted the charge against him just so that she could have a
reason to leave their house where she worked as a domestic helper and be
reunited with her family in the province.
On September 3, 2008, the RTC rendered its Decision,4 finding Mustapha
guilty as charged, and meted out the penalty often (10) years of prision
mayor, as minimum, to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal, as maximum, with the accessory penalty of
perpetual absolute disqualification. Further, Mustapha was ordered to pay a
fine of P25,000.00; civil indemnity of P25,000.00; and moral damages of
P25,000.00.
Not satisfied, Mustapha appealed the RTC judgment of conviction before the
CA claiming that the trial court egregiously erred in declaring him guilty of
violating Section 5(b), Article III of R.A. No. 7610. He faulted the trial court for
giving undue faith and credence to the testimony of AAA, contending that it
was laced with inconsistencies and improbabilities, tainting the veracity of
her charge. He argued that even assuming that he indeed touched the
breasts and vagina of AAA, still there was no concrete prosecution evidence
showing that the said lascivious act was committed through force, duress,
intimidation or violence and, hence, his conviction under R.A. No. 7610 was
erroneous. He added that he could not be convicted of Acts of
Lasciviousness under Article 336 of the Revised Penal Code (RPC) either as
the prosecution failed to establish the essential elements of the said crime.
In its Appellee's Brief,5 the Office of the Solicitor General (OSG) averred that
the RTC was correct in lending weight and credence to the testimony of AAA
and that the alleged inconsistencies in her testimony pertained merely on
minor details and did not negate the commission of the sexual molestation.
The OSG, however, was of the view that Mustapha should have been
convicted of Acts of Lasciviousness only under Article 336 of the RPC and
not for Violation of Section 5(b), Article III of R.A. No. 7610 because the
prosecution failed to prove that the lascivious conduct was committed
through coercion or intimidation.6
In its June 28, 2012 Decision,7 the CA agreed with the OSG and modified
the judgment of the RTC and convicted Mustapha for Acts of Lasciviousness
only under Article 336 of the RPC explaining that coercion or intimidation, the
17
second element of the crime of violation of Section 5(b), Article III of R.A. No.
7610, was wanting in Criminal Case No. 05-1098. According to the CA, the
evidence on record revealed that AAA was asleep at the time the sexual
abuse happened and only awoke when she felt her breasts being mashed
and her vagina being touched. The CA noted that after being roused from
sleep, AAA immediately put on some clothes and rushed out of her room,
leaving Mustapha behind, and locked herself in the stockroom.
The CA added that there was no showing that Mustapha compelled AAA, or
cowed her into silence to bear his sexual assault. Neither was there
evidence that she had the time to manifest conscious lack of consent or
resistance to Mustapha's assault. It stressed that the lascivious acts imputed
to him had taken place while private complainant was in deep slumber or
unconscious, under almost the same factual circumstances as in the case of
People v. Abello,8 where the accused was found guilty beyond reasonable
doubt of the crime of Acts of Lasciviousness, defined and penalized under
Article 336 of the RPC instead of the charge of violation of Section 5(b),
Article III of R.A. No. 7610. The CA justified its ruling that Mustapha's
conviction under Article 336 of the RPC was proper for the reasons that: 1)
the recital of ultimate facts and circumstances in the Information constituted
acts of lasciviousness; and 2) the evidence adduced by the prosecution
established beyond reasonable doubt his guilt of the said crime. The
dispositive portion of the CA decision reads:
WHEREFORE, the Decision appealed from is MODIFIED. Accused-
appellant Mustapha Dimakuta y Maruhom alias "Boyet" is found GUILTY of
acts of lasciviousness, defined and penalized under ARTICLE 336 of the
REVISED PENAL CODE, as amended and he is sentenced to the
indeterminate penalty of SIX (6) MONTHS of arresto mayor, as minimum, to
FOUR (4) YEARS and TWO (2) MONTHS of prision correctional, as
maximum. Accused-appellant is likewise ordered to pay the private
complainant TWENTY THOUSAND PESOS (P2o,ooo.oo) as civil indemnity
and THIRTY THOUSAND PESOS (P30,000.00) as moral damages.
SO ORDERED.9
Instead of moving for reconsideration, Mustapha filed on July 23, 2012, a
manifestation with motion10 before the CA praying that he be allowed to
apply for probation under Presidential Decree (P.D.) No. 968 upon its
remand to the trial court for execution. He placed reliance on the Court's
ruling in Colinares where the accused was allowed to apply for probation
under the reduced penalty imposed on appeal. Mustapha contended that he
should not be prejudiced by the erroneous judgment of the RTC which
convicted him with the wrong crime and sentenced him with a penalty
beyond the coverage of the Probation Law. He submitted that the Probation
Law must be liberally construed in favor of the accused.
In its first assailed Resolution, dated September 3, 2012, the CA denied due
course to Mustapha's manifestation with motion, holding that the Colinares
case was not on all fours with the present case. The CA explained that in
Colinares case, the petitioner raised as sole issue the correctness of the
penalty imposed and claimed that the evidence at best warranted a
conviction for a lesser offense of attempted homicide; while Mustapha never
assailed the propriety of the penalty meted out against him and, in fact,
questioned the findings of facts and conclusions drawn by the RTC based on
the evidence adduced by the prosecution. It held that the ruling in Lagrosa v.
People11 is more at point. In said case, it was held that the petitioners
therein were precluded from seeking probation after taking a guiltlessness
stance and put in issue the merits of their conviction on appeal. The CA,
thus, adjudged as follows:
WHEREFORE, the Manifestation with Motion to Allow Accused-Appellant to
Apply for Probation under Presidential Decree No. 968 is DENIED.
SO ORDERED.12
Mustapha moved for reconsideration, but his motion was denied in the
second assailed Resolution, dated March 13, 2013.
Hence, this petition.chanrobleslaw
GROUND
THE COURT OF APPEALS' DENIAL OF THE PETITIONER'S RIGHT TO
APPLY FOR PROBATION [AS IT DID] NOT QUESTION THE PROPRIETY
OF THE PENALTY UPON APPEAL, IS CONTRARY TO THE DECIDED
CASE OF ARNEL COLINARES VS. PEOPLE.13
The threshold issue that begs an answer from this Court is whether or not
Mustapha has the right to apply for probation under the new penalty
imposed by the CA which is within the probationable limit.
18
Mustapha posits that he can still avail of the benefits of probation under P.D.
No. 968, as amended by P.D. No. 1990, despite having appealed the
September 3, 2008 RTC decision because the opportunity to apply for
probation came into being only upon his conviction by the CA of the crime of
Acts of Lasciviousness and the imposition of a lesser penalty which fell
within the probationable level.
By way of Comment14 to the petition, the OSG counters that Mustapha's
right to apply for probation was lost when he perfected his appeal from the
RTC judgment of conviction. It argues that the perfection of an appeal is a
relinquishment of the alternative remedy of availing the Probation Law
because appeal and probation are mutually exclusive remedies which rest
on diametrically opposed legal positions. The OSG submits that the
Colinares case is not squarely applicable in the case at bench because
Mustapha never admitted guilt and did not limit the issue on the correctness
of the penalty meted out by the trial court.
I am of the view that the petition is impressed with merit.
Probation is not a right of an accused but a mere privilege, an act of grace
and clemency or immunity conferred by the State, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the penalty
imposed by law for the offense of which he was convicted.15 In recent
jurisprudence, it has been clarified that while the convicted offender has no
right to such privilege, nevertheless, he has the right to apply for that
privilege,16 provided that he is not disqualified from availing the benefits of
probation.
To properly understand the current application of the Probation Law, a brief
review of its history is but appropriate. As originally promulgated on July 24,
1976, P.D. No. 968 allowed the filing of an application for probation even if
an appeal had been perfected by the convicted offender. When the law was
later amended by P.D. No. 1257 on December 1, 1977, the filing of an
application for probation pending appeal was still allowed and, in fact, fixed
the period to the point just "before he begins to serve his sentence." With the
subsequent amendment of Section 4 of P.D. No. 968 by P.D. No. 1990,
however, the application for probation is no longer allowed if the accused
has perfected an appeal from the judgment of conviction. Section 4 of the
Probation Law now reads:
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 an 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.
The reason underlying the amendment was amply articulated in the
preambulatory clauses of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted
of offenses and who may be entitled to probation still appeal the judgment of
conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;cralawlawlibrary
WHEREAS, the process of criminal investigation, prosecution, conviction
and appeal entails too much time and effort, not to mention the huge
expenses of litigation, on the part of the State;cralawlawlibrary
WHEREAS, the time, effort and expenses of the Government in investigating
and prosecuting accused persons from the lower courts up to the Supreme
Court, are oftentimes rendered nugatory when, after the appellate Court
finally affirms the judgment of conviction, the defendant applies for and is
granted probation;cralawlawlibrary
xxxx
In Almero v. People,17 the Court stated that the Probation Law was
amended "precisely to put a stop to the practice of appealing from judgments
of conviction - even if the sentence is probationable - for the purpose of
securing an acquittal and applying for the probation only if the accused fails
in his bid." In Sable v. People,18 the Court elucidated that the requirement
that an accused must not have appealed his conviction before he can avail
19
of probation, outlaws the element of speculation on the part of the accused -
to wager on the result of his appeal - that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at hand, and the service of
his sentence inevitable, he now applies for probation as an "escape hatch,"
thus, rendering nugatory the appellate court's affirmance of his conviction.
Resultantly, under Section 4 of P.D. No. 968 as amended, the accused is
given the choice of appealing his sentence or applying for probation. If he
appeals, he cannot later apply for probation. If he opts for probation, he
cannot appeal.
Going back to the case at bench, I am of the considered view that Mustapha
can apply for probation. Mustapha, just like the petitioner in the Colinares
case, did not have a choice between appeal and probation when the trial
court convicted him of a wrong offense. The trial court's erroneous conviction
of Mustapha for Violation of Section 5(b), Article III of R.A. No. 7610 and the
imposition of a prison term often (10) years of prision mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal,
as maximum, deprived him of the choice to pursue an application for
probation considering that the maximum probationable imprisonment under
the Probation Law was only up to six (6) years.
In the Colinares case, the petitioner was convicted by the trial court of
Frustrated Homicide and sentenced him to suffer imprisonment from two (2)
years and four (4) months of prision correccional, as minimum, to six (6)
years and one (1) day of prision mayor, as maximum, but later, on appeal,
this Court found him guilty only of Attempted Homicide, and sentenced him
to suffer an indeterminate penalty from four (4) months of arresto mayor, as
minimum, to two (2) years and four (4) months of prision correccional, as
maximum. Verily, because of the stiff penalties imposed against both
Mustapha and Arnel Colinares by the trial courts, they had no way of
obtaining relief except by appealing their respective judgments.
In the Colinares case, the Court resolved that it is but fair to allow the
petitioner the right to apply for probation under the reduced penalty upon
remand of the case to the RTC. I see no reason why the case of Mustapha
should be treated differently considering that his sentence was reduced by
the CA to an indeterminate penalty of six (6) months of arresto mayor, as
minimum to four (4) years and two (2) months of prision correccional, as
maximum. By appealing the merits of the case, together with the conformity
of the OSG, the CA found Mustapha guilty only of the crime of Acts of
Lasciviousness with a penalty well within the probationable period.
It bears stressing that the evil of speculation and opportunism on the part of
the accused sought to be curbed by the amendment in P.D. No. 1990 was
not present in the case at bench inasmuch as the penalty imposed by the
RTC against Mustapha was not probationable at the outset. Besides,
nowhere in the amendatory decree does it state or even hint that in limiting
the accused to the choice of either appealing from the decision of the trial
court or applying for probation, the purpose is to deny him of the right to
apply for probation in cases like the one at bench where he became eligible
for probation only because his sentence was reduced on appeal. To repeat,
the purpose of the amendment is simply to prevent speculation or
opportunism on the part of the accused who, although already eligible for
probation, does not at once apply for probation, but did so only after failing in
his appeal.19
The CA explained that in the Colinares case, the petitioner therein raised as
sole issue the correctness of the penalty imposed while the OSG contends
that the Colinares case is not squarely applicable to present case because
Mustapha never admitted guilt and did not limit the issue on appeal to the
correctness of the penalty meted out by the trial court.
These arguments are specious.
Firstly, in the Colinares case, the accused therein did not only question the
correctness of the penalty, but also the merits of the case by arguing that he
should be exonerated due to the presence of the justifying circumstance of
self-defense. The Court did not agree with his defense but nevertheless
found him guilty of a lesser offense of attempted homicide with a
probationable penalty. Just like in this case, Mustapha appealed the merits
of the case by questioning the appreciation of evidence of the trial court.
Secondly, it cannot be said with absolute certainty that the sole and
exclusive motivation of Mustapha for lodging the appeal was his desire to be
acquitted. Proof of this is that after Mustapha was found guilty by the CA of
acts of lasciviousness and sentenced to a lesser penalty which thereby
qualified him for probation, he did not appeal further although he could have
done so. What he did, instead, was to accept the new sentence and seek a
declaration from the CA that he is entitled to apply for probation upon
20
remand of the case to the RTC for execution. This shows that he is willing to
accept the conviction of crime, albeit for a lower penalty.
Thirdly, regardless of the whether an accused appealed the merits of the
case or simply the correctness of the penalty imposed, the Court should not
distinguish insofar as the application of the Probation Law is concerned. The
Court cannot expect Mustapha to forgo the remedy of appeal and admit guilt
over a crime he did not commit due to an erroneous appreciation of the
merits of the case. He should not accept the erroneous judgment of the RTC
for, in truth, he only committed Acts of Lasciviousness with a maximum
penalty of four (4) years and two (2) months. Mustapha should not be made
to suffer through the forfeiture of the right to apply for probation simply
because the RTC had blundered. In the Colinares case, it was written:
The Probation Law never intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of probation is one of
liberality towards the accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be
regarded as a mere privilege to be given to the accused only where it clearly
appears he comes within its letter; to do so would be to disregard the
teaching in many cases that the Probation Law should be applied in favor of
the accused not because it is a criminal law but to achieve its beneficent
purpose.
There are views that Mustapha should not be allowed to apply for probation
anchored on the following grounds:
1] the Colinares case should not be made to apply to this case because it is
not yet an established doctrine and the pronouncements therein were not
supported by the text of the Probation Law; and
2] even if the ratiocination in the Colinares case is sound, still, it finds no
application in the case at bench inasmuch as the CA erred in modifying the
judgment of the RTC.
I disagree.
Adherence to the Colinares case is dictated by this Court's policy of securing
and maintaining certainty and stability of judicial decisions in accordance
with the legal maxim stare decisis et non quieta movere (or simply, stare
decisis which means "follow past precedents and do not disturb what has
been settled"). The principle, entrenched under Article 820 of the Civil Code,
evokes the general rule that, for the sake of certainty, a conclusion reached
in one case should be doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may be different.21
Otherwise stated, once a point of law has been established by the Court,
that point of law will, generally, be followed by the same court and by all
courts of lower rank in subsequent cases where the same legal issue is
raised.
Stare decisis proceeds from the first principle of justice that, absent powerful
countervailing considerations, like cases ought to be decided alike.22
Hence, where, as in this case, the same question relating to the same event
have been put forward by parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare decisis is a bar
to any attempt to relitigate the same issue.23 Significantly, the respondent
has not shown any strong and compelling reason to persuade the Court that
the manner of disposition in Colinares v. People pertaining to the matter of
probation should not be observed and adopted in the case at bench.
Anent the second ground, suffice it to state that the June 28, 2012 Decision
of the CA convicting Mustapha for Acts of Lasciviousness became final and
executory only upon the failure of either party to question the decision. On
the other hand, after Mustapha received a copy of the aforesaid decision on
July 6, 2012, he did not further appeal the same to this Court. Instead, he
filed before the CA on July 23, 2012, a manifestation with motion to allow
him to apply for probation upon remand of the case to the trial court for
execution. To review the correctness of the final and executory June 28,
2012 Decision of the CA at this point is no longer permissible in the light of
the constitutional interdict against double jeopardy.
Not surprisingly, the OSG did not question the decision anymore as it
conformed to its own recommendation that the petitioner should be found
guilty of Acts of Lasciviousness only.24
Let it be underscored that the primodial consideration of this Court in
allowing the petitioner in the Colinares case to apply for probation was one
of fairness. Here, considering that the sentence of the RTC against
Mustapha was modified by the CA to a probationable range upon
recommendation of the OSG, and that he is not one of those disqualified
offenders under Section 9 of P.D. No. 968 as amended, he should not be
21
denied his right to apply for probation in the spirit of fairness. To rule
otherwise would send Mustapha straight to jail and, thus, robbing him of the
chance to undergo reformation and rehabilitation as a penitent offender,
defeating the avowed purpose and objective of the Probation Law.
IN VIEW OF ALL THE FOREGOING, I recommend that the petition be
GRANTED; that the assailed September 3, 2012 and March 13, 2013
Resolutions of the Court of Appeals (CA) in CA-G.R. CR No. 31963 be
REVERSED and SET ASIDE; and that petitioner Mustapha Dimakuta y
Maruhon @ Boyet be declared as entitled to apply for probation within fifteen
(15) days from notice that the record of the case has been remanded for
execution to the Regional Trial Court of Las Pinas City, Branch 199, in
Criminal Case No. 05-1098.
EN BANC
G.R. No. 182748 December 13, 2011
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all that
it takes; b) what distinguishes frustrated homicide from attempted homicide;
and c) when an accused who appeals may still apply for probation on
remand of the case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel
Colinares (Arnel) with frustrated homicide before the Regional Trial Court
(RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the
evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy
cigarettes at a nearby store. On their way, Jesus took a leak by the roadside
with Rufino waiting nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 inches in diameter.
Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he saw
Rufino lying by the roadside. Ananias tried to help but someone struck him
with something hard on the right temple, knocking him out. He later learned
that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he
happened to be smoking outside his house. He sought the help of a
barangay tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino
suffered two lacerated wounds on the forehead, along the hairline area. The
doctor testified that these injuries were serious and potentially fatal but
Rufino chose to go home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel
claimed self-defense. He testified that he was on his way home that evening
when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel
asked Rufino where he supposed the Mayor of Tigaon was but, rather than
reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed
Arnel several times on the back. Rufino tried to stab Arnel but missed. The
latter picked up a stone and, defending himself, struck Rufino on the head
with it. When Ananias saw this, he charged towards Arnel and tried to stab
him with a gaff. Arnel was able to avoid the attack and hit Ananias with the
same stone. Arnel then fled and hid in his sisters house. On September 4,
2000, he voluntarily surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-
wedding party on the night of the incident. His three companions were all
drunk. On his way home, Diomedes saw the three engaged in heated
argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond
reasonable doubt of frustrated homicide and sentenced him to suffer
imprisonment from two years and four months of prision correccional, as
minimum, to six years and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was only up to six
years, Arnel did not qualify for probation.
22
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide
with the consequent reduction of the penalty imposed on him. The CA
entirely affirmed the RTC decision but deleted the award for lost income in
the absence of evidence to support it.3 Not satisfied, Arnel comes to this
Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and the
Solicitor General to submit their respective positions on whether or not,
assuming Arnel committed only the lesser crime of attempted homicide with
its imposable penalty of imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as
maximum, he could still apply for probation upon remand of the case to the
trial court.
Both complied with Arnel taking the position that he should be entitled to
apply for probation in case the Court metes out a new penalty on him that
makes his offense probationable. The language and spirit of the probation
law warrants such a stand. The Solicitor General, on the other hand, argues
that under the Probation Law no application for probation can be entertained
once the accused has perfected his appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the
head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of
frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower offense and a
reduced probationable penalty, whether or not he may still apply for
probation on remand of the case to the trial court.
The Courts Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that
he merely acted in self-defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing
that he was legally justified in killing the victim or inflicting injury to him. The
accused must establish the elements of self-defense by clear and convincing
evidence. When successful, the otherwise felonious deed would be excused,
mainly predicated on the lack of criminal intent of the accused.4
In homicide, whether consummated, frustrated, or attempted, self-defense
requires (1) that the person whom the offender killed or injured committed
unlawful aggression; (2) that the offender employed means that is
reasonably necessary to prevent or repel the unlawful aggression; and (3)
that the person defending himself did not act with sufficient provocation.5
If the victim did not commit unlawful aggression against the accused, the
latter has nothing to prevent or repel and the other two requisites of self-
defense would have no basis for being appreciated. Unlawful aggression
contemplates an actual, sudden, and unexpected attack or an imminent
danger of such attack. A mere threatening or intimidating attitude is not
enough. The victim must attack the accused with actual physical force or
with a weapon.6
Here, the lower courts found that Arnel failed to prove the element of
unlawful aggression. He alone testified that Jesus and Ananias rained fist
blows on him and that Rufino and Ananias tried to stab him. No one
corroborated Arnels testimony that it was Rufino who started it. Arnels only
other witness, Diomedes, merely testified that he saw those involved having
a heated argument in the middle of the street. Arnel did not submit any
medical certificate to prove his point that he suffered injuries in the hands of
Rufino and his companions.7
In contrast, the three witnessesJesus, Paciano, and Ananiastestified
that Arnel was the aggressor. Although their versions were mottled with
inconsistencies, these do not detract from their core story. The witnesses
were one in what Arnel did and when and how he did it. Compared to Arnels
testimony, the prosecutions version is more believable and consistent with
reality, hence deserving credence.8
Two. But given that Arnel, the accused, was indeed the aggressor, would he
be liable for frustrated homicide when the wounds he inflicted on Rufino, his
victim, were not fatal and could not have resulted in death as in fact it did
not?
23

The main element of attempted or frustrated homicide is the accuseds intent
to take his victims life. The prosecution has to prove this clearly and
convincingly to exclude every possible doubt regarding homicidal intent.9
And the intent to kill is often inferred from, among other things, the means
the offender used and the nature, location, and number of wounds he
inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The blow was so
forceful that it knocked Rufino out. Considering the great size of his weapon,
the impact it produced, and the location of the wounds that Arnel inflicted on
his victim, the Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not
frustrated, homicide. In Palaganas v. People,11 we ruled that when the
accused intended to kill his victim, as shown by his use of a deadly weapon
and the wounds he inflicted, but the victim did not die because of timely
medical assistance, the crime is frustrated murder or frustrated homicide. If
the victims wounds are not fatal, the crime is only attempted murder or
attempted homicide.
Thus, the prosecution must establish with certainty the nature, extent, depth,
and severity of the victims wounds. While Dr. Belleza testified that "head
injuries are always very serious,"12 he could not categorically say that
Rufinos wounds in this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds actually
are not fatal on that very day?
A: I could not say, with the treatment we did, prevent from becoming fatal.
But on that case the patient preferred to go home at that time.
Q: The findings also indicated in the medical certificate only refers to the
length of the wound not the depth of the wound?
A: When you say lacerated wound, the entire length of the layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is broken up the
label of the frontal lo[b]e, we always call it lacerated wound, but in that kind
of wound, we did not measure the depth.13
Indeed, Rufino had two lacerations on his forehead but there was no
indication that his skull incurred fracture or that he bled internally as a result
of the pounding of his head. The wounds were not so deep, they merely
required suturing, and were estimated to heal in seven or eight days. Dr.
Belleza further testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give antibiotics and
antit[e]tanus the problem the contusion that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them would
rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
24
Taken in its entirety, there is a dearth of medical evidence on record to
support the prosecutions claim that Rufino would have died without timely
medical intervention. Thus, the Court finds Arnel liable only for attempted
homicide and entitled to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he
having appealed from the judgment of the RTC convicting him for frustrated
homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted
homicide and holds that the maximum of the penalty imposed on him should
be lowered to imprisonment of four months of arresto mayor, as minimum, to
two years and four months of prision correccional, as maximum. With this
new penalty, it would be but fair to allow him the right to apply for probation
upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere
privilege granted by the state only to qualified convicted offenders. Section 4
of the probation law (PD 968) provides: "That no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction."15 Since Arnel appealed his conviction for
frustrated homicide, he should be deemed permanently disqualified from
applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not
that Arnel has the right to such privilege; he certainly does not have. What he
has is the right to apply for that privilege. The Court finds that his maximum
jail term should only be 2 years and 4 months. If the Court allows him to
apply for probation because of the lowered penalty, it is still up to the trial
judge to decide whether or not to grant him the privilege of probation, taking
into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals
"from the judgment of conviction" is disqualified from availing himself of the
benefits of probation. But, as it happens, two judgments of conviction have
been meted out to Arnel: one, a conviction for frustrated homicide by the
regional trial court, now set aside; and, two, a conviction for attempted
homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it will
apply the probation law on Arnel based on the trial courts annulled judgment
against him. He will not be entitled to probation because of the severe
penalty that such judgment imposed on him. More, the Supreme Courts
judgment of conviction for a lesser offense and a lighter penalty will also
have to bend over to the trial courts judgmenteven if this has been found
in error. And, worse, Arnel will now also be made to pay for the trial courts
erroneous judgment with the forfeiture of his right to apply for probation. Ang
kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the
carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to
apply for probation would dilute the ruling of this Court in Francisco v. Court
of Appeals16 that the probation law requires that an accused must not have
appealed his conviction before he can avail himself of probation. But there is
a huge difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the
accused guilty of grave oral defamation and sentenced him to a prison term
of one year and one day to one year and eight months of prision
correccional, a clearly probationable penalty. Probation was his to ask! Still,
he chose to appeal, seeking an acquittal, hence clearly waiving his right to
apply for probation. When the acquittal did not come, he wanted probation.
The Court would not of course let him. It served him right that he wanted to
save his cake and eat it too. He certainly could not have both appeal and
probation.
The Probation Law, said the Court in Francisco, requires that an accused
must not have appealed his conviction before he can avail himself of
probation. This requirement "outlaws the element of speculation on the part
of the accusedto wager on the result of his appealthat when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at
hand, and the service of his sentence inevitable, he now applies for
probation as an escape hatch thus rendering nugatory the appellate courts
affirmance of his conviction."17
Here, however, Arnel did not appeal from a judgment that would have
allowed him to apply for probation. He did not have a choice between appeal
and probation. He was not in a position to say, "By taking this appeal, I
choose not to apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling that would allow Arnel
to now seek probation under this Courts greatly diminished penalty will not
dilute the sound ruling in Francisco. It remains that those who will appeal
25
from judgments of conviction, when they have the option to try for probation,
forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the
penalty imposed on him. He claimed that the evidence at best warranted his
conviction only for attempted, not frustrated, homicide, which crime called for
a probationable penalty. In a way, therefore, Arnel sought from the beginning
to bring down the penalty to the level where the law would allow him to apply
for probation.
In a real sense, the Courts finding that Arnel was guilty, not of frustrated
homicide, but only of attempted homicide, is an original conviction that for
the first time imposes on him a probationable penalty. Had the RTC done
him right from the start, it would have found him guilty of the correct offense
and imposed on him the right penalty of two years and four months
maximum.lavvphil This would have afforded Arnel the right to apply for
probation.
The Probation Law never intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of probation is one of
liberality towards the accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions.18 As Justice Vicente V.
Mendoza said in his dissent in Francisco, the Probation Law must not be
regarded as a mere privilege to be given to the accused only where it clearly
appears he comes within its letter; to do so would be to disregard the
teaching in many cases that the Probation Law should be applied in favor of
the accused not because it is a criminal law but to achieve its beneficent
purpose.19
One of those who dissent from this decision points out that allowing Arnel to
apply for probation after he appealed from the trial courts judgment of
conviction would not be consistent with the provision of Section 2 that the
probation law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel who appeals from
a judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years. How can the Court
expect him to feel penitent over a crime, which as the Court now finds, he
did not commit? He only committed attempted homicide with its maximum
penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation under the
reduced penalty, it would be sending him straight behind bars. It would be
robbing him of the chance to instead undergo reformation as a penitent
offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and
imposed on Arnel the correct penalty of two years and four months
maximum, he would have had the right to apply for probation. No one could
say with certainty that he would have availed himself of the right had the
RTC done right by him. The idea may not even have crossed his mind
precisely since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair to deny Arnel
the right to apply for probation when the new penalty that the Court imposes
on him is, unlike the one erroneously imposed by the trial court, subject to
probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the
Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639,
FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of
attempted homicide, and SENTENCES him to suffer an indeterminate
penalty from four months of arresto mayor, as minimum, to two years and
four months of prision correccional, as maximum, and to pay Rufino P.
Buena the amount of P20,000.00 as moral damages, without prejudice to
petitioner applying for probation within 15 days from notice that the record of
the case has been remanded for execution to the Regional Trial Court of San
Jose, Camarines Sur, in Criminal Case T-2213.
SO ORDERED.
26

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y
PILO, accused-appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming the
conviction of the accused-appellant for the crime of raping his ten-year old
daughter. The crime having been committed sometime in April, 1994, during
which time Republic Act (R.A.) No. 7659, commonly known as the Death
Penalty Law, was already in effect, accused-appellant was inevitably meted
out the supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the victim's
grandmother that precipitated the filing of the alleged false accusation of
rape against the accused. We find no substantial arguments on the said
motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty.
Julian R. Vitug, and retained the services of the Anti-Death Penalty Task
Force of the Free Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused-appellant. The
motion raises the following grounds for the reversal of the death sentence:
"[1] Accused-appellant should not have been prosecuted since the pardon by
the offended party and her mother before the filing of the complaint acted as
a bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the commission of the
offense in the Complaint and throughout trial prevented the accused-
appellant from preparing an adequate defense.
[3] The guilt of the accused was not proved beyond a reasonable doubt.
[4] The Honorable Court erred in finding that the accused-appellant was the
father or stepfather of the complainant and in affirming the sentence of death
against him on this basis.
[5] The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial.
[6] The accused-appellant was denied his constitutional right to effective
assistance of counsel and to due process, due to the incompetence of
counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se:
a. For crimes where no death results from the offense, the death penalty is a
severe and excessive penalty in violation of Article III, Sec. 19 ( I ) of the
1987 Constitution.
b. The death penalty is cruel and unusual punishment in violation of Article
III, Sec. 11 of the 1987 Constitution."
In sum, the Supplemental Motion for Reconsideration raises three (3) main
issues: (1) mixed factual and legal matters relating to the trial proceedings
and findings; (2) alleged incompetence of accused-appellant's former
counsel; and (3) purely legal question of the constitutionality of R.A. No.
7659.
I.
It is a rudimentary principle of law that matters neither alleged in the
pleadings nor raised during the proceedings below cannot be ventilated for
the first time on appeal before the Supreme Court. Moreover, as we have
stated in our Resolution in Manila Bay Club Corporation v. Court of Appeals:
[1]
"If well-recognized jurisprudence precludes raising an issue only for the first
time on appeal proper, with more reason should such issue be disallowed or
disregarded when initially raised only in a motion for reconsideration of the
decision of the appellate court."
27
It is to be remembered that during the proceedings of the rape case against
the accused-appellant before the sala of then presiding Judge Maximiano C.
Asuncion, the defense attempted to prove that:
a) the rape case was motivated by greed, hence, a mere concoction of the
alleged victim's maternal grandmother;
b) the accused is not the real father of the complainant;
c) the size of the penis of the accused cannot have possibly penetrated the
alleged victim's private part; and
d) the accused was in Paraaque during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic review,
the accused-appellant reiterated as grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother in prompting her
grandchild to file the rape case;
b) the defense of denial relative to the size of his penis which could not have
caused the healed hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of the
accused-appellant reveals that in their messianic appeal for a reversal of our
judgment of conviction, we are asked to consider for the first time, by way of
a Supplemental Motion for Reconsideration, the following matters:
a) the affidavit of desistance written by the victim which acted as a bar to the
criminal prosecution for rape against the accused-appellant;
b) the vagueness attributed to the date of the commission of the offense in
the Complaint which deprived the accused-appellant from adequately
defending himself;
c) the failure of this Court to clearly establish the qualifying circumstance that
placed the accused-appellant within the coverage of the Death Penalty Law;
d) the denial of due process and the manifest bias exhibited by the trial court
during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for
reconsideration, the only legitimate issue that We can tackle relates to the
Affidavit of Desistance which touches on the lack of jurisdiction of the trial
court to have proceeded with the prosecution of the accused-appellant
considering that the issue of jurisdiction over the subject matter may be
raised at any time, even during appeal.[2]
It must be stressed that during the trial proceedings of the rape case against
the accused-appellant, it appeared that despite the admission made by the
victim herself in open court that she had signed an Affidavit of Desistance,
she, nevertheless, "strongly pointed out that she is not withdrawing the
charge against the accused because the latter might do the same sexual
assaults to other women."[3] Thus, this is one occasion where an affidavit of
desistance must be regarded with disfavor inasmuch as the victim, in her
tender age, manifested in court that she was pursuing the rape charges
against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,[4] that:
"As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also
cited by the accused-appellant, an affidavit of desistance is merely an
additional ground to buttress the accused's defenses, not the sole
consideration that can result in acquittal. There must be other circumstances
which, when coupled with the retraction or desistance, create doubts as to
the truth of the testimony given by the witnesses at the trial and accepted by
the judge."[5]
In the case at bar, all that the accused-appellant offered as defenses mainly
consisted of denial and alibi which cannot outweigh the positive identification
and convincing testimonies given by the prosecution. Hence, the affidavit of
desistance, which the victim herself intended to disregard as earlier
discussed, must have no bearing on the criminal prosecution against the
accused-appellant, particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or mistakes of
his counsel.[6] One of the recognized exceptions to this rule is gross
28
incompetency in a way that the defendant is highly prejudiced and
prevented, in effect, from having his day in court to defend himself.[7]
In the instant case, we believe that the former counsel of the accused-
appellant to whom the FLAG lawyers now impute incompetency had amply
exercised the required ordinary diligence or that reasonable decree of care
and skill expected of him relative to his client's defense. As the rape case
was being tried on the merits, Atty. Vitug, from the time he was assigned to
handle the case, dutifully attended the hearings thereof. Moreover, he had
seasonably submitted the Accused-Appellant's Brief and the Motion for
Reconsideration of our June 25, 1996 Decision with extensive discussion in
support of his line of defense. There is no indication of gross incompetency
that could have resulted from a failure to present any argument or any
witness to defend his client. Neither has he acted haphazardly in the
preparation of his case against the prosecution evidence. The main reason
for his failure to exculpate his client, the accused-appellant, is the
overwhelming evidence of the prosecution. The alleged errors committed by
the previous counsel as enumerated by the new counsel could not have
overturned the judgment of conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as
punishment for violation of law or custom, religious or secular, is an ancient
practice. We do know that our forefathers killed to avenge themselves and
their kin and that initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in the name of the
state.
The dawning of civilization brought with it both the increasing sensitization
throughout the later generations against past barbarity and the
institutionalization of state power under the rule of law. Today every man or
woman is both an individual person with inherent human rights recognized
and protected by the state and a citizen with the duty to serve the common
weal and defend and preserve society.
One of the indispensable powers of the state is the power to secure society
against threatened and actual evil. Pursuant to this, the legislative arm of
government enacts criminal laws that define and punish illegal acts that may
be committed by its own subjects, the executive agencies enforce these
laws, and the judiciary tries and sentences the criminals in accordance with
these laws.
Although penologists, throughout history, have not stopped debating on the
causes of criminal behavior and the purposes of criminal punishment, our
criminal laws have been perceived as relatively stable and functional since
the enforcement of the Revised Penal Code on January 1, 1932, this
notwithstanding occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally promulgated, provided
for the death penalty in specified crimes under specific circumstances. As
early as 1886, though, capital punishment had entered our legal system
through the old Penal Code, which was a modified version of the Spanish
Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a
constitutional question of whether or not the death penalty is a cruel, unjust,
excessive or unusual punishment in violation of the constitutional
proscription against cruel and unusual punishments. We unchangingly
answered this question in the negative in the cases of Harden v. Director of
Prison,[8] People v. Limaco,[9] People v. Camano,[10] People v. Puda[11]
and People v. Marcos,[12] In Harden, we ruled:
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte
Kemmler, 136 U.S., 436, the United States Supreme Court said that
'punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in
the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.'"[13]
Consequently, we have time and again emphasized that our courts are not
the fora for a protracted debate on the morality or propriety of the death
sentence where the law itself provides therefor in specific and well-defined
criminal acts. Thus we had ruled in the 1951 case of Limaco that:
"x x x there are quite a number of people who honestly believe that the
supreme penalty is either morally wrong or unwise or ineffective. However,
as long as that penalty remains in the statute books, and as long as our
criminal law provides for its imposition in certain cases, it is the duty of
judicial officers to respect and apply the law regardless of their private
opinions,"[14]
29
and this we have reiterated in the 1995 case of People v. Veneracion.[15]
Under the Revised Penal Code, death is the penalty for the crimes of
treason, correspondence with the enemy during times of war, qualified
piracy, parricide, murder, infanticide, kidnapping, rape with homicide or with
the use of deadly weapon or by two or more persons resulting in insanity,
robbery with homicide, and arson resulting in death. The list of capital
offenses lengthened as the legislature responded to the emergencies of the
times. In 1941, Commonwealth Act (C.A.) No. 616 added espionage to the
list. In the 1950s, at the height of the Huk rebellion, the government enacted
Republic Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law,
which carried the death penalty for leaders of the rebellion. From 1971 to
1972, more capital offenses were created by more laws, among them, the
Anti-Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law.
During martial law, Presidential Decree (P.D.) No. 1866 was enacted
penalizing with death, among others, crimes involving homicide committed
with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos regime
and led to the nullification of the 1973 Constitution, a Constitutional
Commission was convened following appointments thereto by Corazon
Aquino who was catapulted to power by the people.
Tasked with formulating a charter that echoes the new found freedom of a
rejuvenated people, the Constitutional Commissioners grouped themselves
into working committees among which is the Bill of Rights Committee with
Jose B. Laurel, Jr. As Chairman and Father Joaquin G. Bernas, S.J., as
Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the
proposed bill of rights to the rest of the commission. What is now Article III,
Section 19 (1) of the 1987 Constitution was first denominated as Section 22
and was originally worded as follows:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment, or the death penalty inflicted. Death penalty already imposed
shall be commuted to reclusion perpetua."
Father Bernas explained that the foregoing provision was the result of a
consensus among the members of the Bill of Rights Committee that the
death penalty should be abolished. Having agreed to abolish the death
penalty, they proceeded to deliberate on how the abolition was to be done --
whether the abolition should be done by the Constitution or by the legislature
-- and the majority voted for a constitutional abolition of the death penalty.
Father Bernas explained:
"x x x [T]here was a division in the Committee not on whether the death
penalty should be abolished or not, but rather on whether the abolition
should be done by the Constitution -- in which case it cannot be restored by
the legislature -- or left to the legislature. The majority voted for the
constitutional abolition of the death penalty. And the reason is that capital
punishment is inhuman for the convict and his family who are traumatized by
the waiting, even if it is never carried out. There is no evidence that the
death penalty deterred deadly criminals, hence, life should not be destroyed
just in the hope that other lives might be saved. Assuming mastery over the
life of another man is just too presumptuous for any man. The fact that the
death penalty as an institution has been there from time immemorial should
not deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So, basically, this is the summary of
the reasons which were presented in support of the constitutional abolition of
the death penalty".[16]
The original wording of Article III, Section 19 (1), however, did not survive the
debate that it instigated. Commissioner Napoleon G. Rama first pointed out
that "never in our history has there been a higher incidence of crime" and
that "criminality was at its zenith during the last decade".[17] Ultimately, the
dissent defined itself to an unwillingness to absolutely excise the death
penalty from our legal system and leave society helpless in the face of a
future upsurge of crimes or other similar emergencies. As Commissioner
Rustico F. de los Reyes, Jr. suggested, "although we abolish the death
penalty in the Constitution, we should afford some amount of flexibility to
future legislation,"[18] and his concern was amplified by the interpellatory
remarks of Commissioner Lugum L. Commissioner and now Associate
Justice Florenz Regalado, Commissioner Crispino M. de Castro,
Commissioner Ambrosio B. Padilla, Commissioner Christian Monsod,
Commissioner Francisco A. Rodrigo, and Commissioner Ricardo Romulo.
Commissioner Padilla put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
"BISHOP BACANI. x x x At present, they explicitly make it clear that the
church has never condemned the right of the state to inflict capital
punishment.
30
MR. PADILLA. x x x So it is granted that the state is not deprived of the right
even from a moral standpoint of imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of
view, that right of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the
delegated authority from the Creator to impose the death penalty under
certain circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is
needed for the sake of the common good, but the issue at stake is whether
or not under the present circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a particular
stage in history, but it is not clear whether or not that delegation is forever
under all circumstances
MR. PADILLA. So this matter should be left to the legislature to determine,
under certain specified conditions or circumstances, whether the retention of
the death penalty or its abolition would be for the common good. I do not
believe this Commission can a priori, and as was remarked within a few days
or even a month, determine a positive provision in the Constitution that
would prohibit even the legislature to prescribe the death penalty for the
most heinous crimes, the most grievous offenses attended by many
qualifying and aggravating circumstances."[19]
What followed, thus, were proposed amendments to the beleaguered
provision. The move to add the phrase, "unless for compelling reasons
involving heinous crimes, the national assembly provides for the death
penalty," came from Commissioners Monsod, Jose E. Suarez and de los
Reyes. Commissioner Rodrigo, however, expressed reservations even as
regards the proposed amendment. He said:
"x x x [T]he issue here is whether or not we should provide this matter in the
Constitution or leave it to the discretion of our legislature. Arguments pro and
con have been given x x x. But my stand is, we should leave this to the
discretion of the legislature.
The proposed amendment is halfhearted. It is awkward because we will, in
effect, repeal by our Constitution a piece of legislation and after repealing
this piece of legislation, tell the legislature that we have repealed the law and
that the legislature can go ahead and enact it again. I think this is not worthy
of a constitutional body like ours. If we will leave the matter of the death
penalty to the legislature, let us leave it completely to the discretion of the
legislature, but let us not have this half-baked provision. We have many
provisions in the Revised Penal Code imposing the death penalty. We will
now revoke or repeal these pieces of legislation by means of the
Constitution, but at the same time say that it is up to the legislature to
impose this again.
x x x The temper and condition of the times change x x x and so we, I think
we should leave this matter to the legislature to enact statutes depending on
the changing needs of the times. Let us entrust this completely to the
legislature composed of representatives elected by the people.
I do not say that we are not competent. But we have to admit the fact that we
are not elected by the people and if we are going to entrust this to the
legislature, let us not be half-baked nor half-hearted about it. Let us entrust it
to the legislature 100 percent."[20]
Nonetheless, the proposed amendment was approved with twenty-three (23)
commissioners voting in favor of the amendment and twelve (12) voting
against it, followed by more revisions, hence the present wording of Article
III, Section 19 (1) of the 1987 Constitution in the following tenor:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua."
The implications of the foregoing provision on the effectivity of the death
penalty provisions in the Revised Penal Code and certain special criminal
laws and the state of the scale of penalties thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what used to
be capital crimes. In People v. Gavarra,[21] we stated that "in view of the
abolition of the death penalty under Section 19, Article III of the 1987
31
Constitution, the penalty that may be imposed for murder is reclusion
temporal in its maximum period to reclusion perpetua"[22] thereby
eliminating death as the original maximum period. The constitutional
abolition of the death penalty, it seemed, limited the penalty for murder to
only the remaining periods, to wit, the minimum and the medium, which we
then, in People v. Masangkay,[23] People v. Atencio[24] and People v.
Intino[25] divided into three new periods, to wit, the lower half of reclusion
temporal maximum as the minimum; the upper half of reclusion temporal
maximum as the medium; and reclusion perpetua as the maximum, in
keeping with the three-grade scheme under the Revised Penal Code. In
People v. Munoz,[26] however, we reconsidered these aforecited cases and
after extended discussion, we concluded that the doctrine announced therein
did not reflect the intention of the framers. The crux of the issue was whether
or not Article III, Section 19 (1) absolutely abolished the death penalty, for if it
did, then, the aforementioned new three-grade penalty should replace the
old one where the death penalty constituted the maximum period. But if no
total abolition can be read from said constitutional provision and the death
penalty is only suspended, it cannot as yet be negated by the institution of a
new three-grade penalty premised on the total inexistence of the death
penalty in our statute books. We thus ruled in Munoz:
"The advocates of the Masangkay ruling argue that the Constitution
abolished the death penalty and thereby limited the penalty for murder to the
remaining periods, to wit, the minimum and the medium. These should now
be divided into three new periods in keeping with the three-grade scheme
intended by the legislature. Those who disagree feel that Article III, Section
19 (1) merely prohibits the imposition of the death penalty and has not, by
reducing it to reclusion perpetua, also correspondingly reduced the
remaining penalties. These should be maintained intact.
A reading of Section 19 (1) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty.
The provision merely says that the death penalty shall not be imposed
unless for compelling reasons involving heinous crimes the Congress
hereafter provides for it and, if already imposed, shall be reduced to
reclusion perpetua. The language, while rather awkward, is still plain
enough".[27]
Nothing is more defining of the true content of Article III, Section 19 (1) of the
1987 Constitution than the form in which the legislature took the initiative in
re-imposing the death penalty.
The Senate never doubted its power as vested in it by the constitution, to
enact legislation re-imposing the death penalty for compelling reasons
involving heinous crimes. Pursuant to this constitutional mandate, the
Senate proceeded to a two-step process consisting of: first, the decision, as
a matter of policy, to re-impose the death penalty or not; and second, the
vote to pass on the third reading the bill re-imposing the death penalty for
compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments for
and against capital punishment, the Members of the Senate voted on the
policy issue of death penalty. The vote was explained, thus:
"SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body
suspended the Rules of the Senate.
Thereafter, upon motion of Senator Romulo, there being no objection, the
Chair directed that a nominal voting be conducted on the policy issue of
death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would vote
on this policy question, Senator Romulo stated that a vote of Yes would
mean a vote in favor of death as a penalty to be reincorporated in the scale
of penalties as provided in the Revised Penal Code, and a vote of No would
be a vote against the reincorporation of death penalty in the scale of
penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body would first decide
the question whether or not death penalty should be reimposed, and
thereafter, a seven-man committee would be formed to draft the compromise
bill in accordance with the result of the voting. If the Body decides in favor of
the death penalty, the Chair said that the committee would specify the crimes
on which death penalty would be imposed. It affirmed that a vote of Yes in
32
the nominal voting would mean a vote in favor of death penalty on at least
one crime, and that certain refinements on how the penalty would be
imposed would be left to the discretion of the seven-man committee.
xxx
INQUIRY OF SENATOR TAADA
In reply to Senator Taada's query, the Chair affirmed that even if a senator
would vote 'yes' on the basic policy issue, he could still vote 'no' on the
imposition of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic
policy issue of whether or not the death penalty would be included in the
scale of penalties found in Article 27 of the Revised Penal Code, so that if it
is voted down, the Body would discontinue discussing Senate Bill No. 891
pursuant to the Rules, but if approved, a special committee, as agreed upon
in the caucus, is going to be appointed and whatever course it will take will
depend upon the mandate given to it by the Body later on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as a
penalty will be reincorporated in the scale of penalties provided by the
Revised Penal Code. However, he pointed out that if the Body decides in
favor of death penalty, the Body would still have to address two issues: 1) Is
the crime for which the death penalty is supposed to be imposed heinous
pursuant to the constitutional mandate? 2) And, if so, is there a compelling
reason to impose the death penalty for it? The death penalty, he stressed,
cannot be imposed simply because the crime is heinous."[28]
With seventeen (17) affirmative votes and seven (7) negative votes and no
abstention, the Chair declared that the Senate has voted to re-incorporate
death as a penalty in the scale of penalties as provided in the Revised Penal
Code. A nine-person committee was subsequently created to draft the
compromise bill pursuant to said vote. The mandate of the committee was to
retain the death penalty, while the main debate in the committee would be
the determination of the crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special
Committee on the Death Penalty, delivered his Sponsorship Speech. He
began with an explanation as to why the Senate Bill No. 891 re-imposes the
death penalty by amending the Revised Penal Code and other special penal
laws and includes provisions that do not define or punish crimes but serve
purposes allied to the reimposition of the death penalty. Senator Tolentino
stated:
x x x [W]hen the Senate approved the policy of reimposing the death penalty
on heinous crimes and delegated to the Special Committee the work of
drafting a bill, a compromise bill that would be the subject for future
deliberations of this Body, the Committee had to consider that the death
penalty was imposed originally in the Revised Penal Code.
So, when the Constitution was approved in order to do away with the death
penalty, unless Congress should, for compelling reasons reimpose that
penalty on heinous crimes, it was obvious that it was the Revised Penal
Code that was affected by that provision of the Constitution. The death
penalty, as provided in the Revised Penal Code, would be considered as
having been repealed -- all provisions on the death penalty would be
considered as having been repealed by the Constitution, until Congress
should, for compelling reasons, reimpose such penalty on heinous crimes.
Therefore, it was not only one article but many articles of the Revised Penal
Code that were actually affected by the Constitution.
And it is in consideration of this consequence of the constitutional provision
that our Special Committee had to consider the Revised Penal Code itself in
making this compromise bill or text of the bill. That is why, in the proposed
draft now under consideration which we are sponsoring, the specific
provisions of the Revised Penal Code are actually either reenacted or
amended or both. Because by the effect of the Constitution, some provisions
were totally repealed, and they had to be reenacted so that the provisions
could be retained. And some of them had to be amended because the
Committee thought that amendments were proper."[29]
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or
not it would have been better if the Senate were to enact a special law which
33
merely defined and imposed the death penalty for heinous crimes, Senator
Tolentino explicated, thus:
"x x x [T]hat may be a way presenting the bill. But we must bear in mind that
the death penalty is imposed in the Revised Penal Code. Therefore, when
the Constitution abolished the death penalty, it actually was amending the
Revised Penal Code to such an extent that the Constitution provides that
where the death penalty has already been imposed but not yet carried out,
then the penalty shall be reclusion perpetua, that is the penalty in the
Revised Penal Code. So we thought that it would be best to just amend the
provisions of the Revised Penal Code, restoring the death penalty for some
crimes that may be considered as heinous. That is why the bill is in this form
amending the provisions of the Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole trouble
is, when a special bill is presented and we want to punish in the special bill
the case of murder, for instance, we will have to reproduce the provisions of
the Revised Penal Code on murder in order to define the crime for which the
death penalty shall be imposed. Or if we want to impose the death penalty in
the case of kidnapping which is punished in the Revised Penal Code, we will
do the same -- merely reproduce. Why will we do that? So we just followed
the simpler method of keeping the definition of the crime as the same and
merely adding some aggravating circumstances and reimposing the death
penalty in these offenses originally punished in the Revised Penal
Code."[30]
From March 17, 1993, when the death penalty bill was presented for
discussion until August 16, 1993, the Members of the Senate debated on its
provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept
prodding the sponsors of the bill to state the compelling reason for each and
every crime for which the supreme penalty of death was sought. Zeroing in
on the statement in the preamble of the death penalty bill that the same is
warranted in the face of "the alarming upsurge of [heinous] crimes", Senator
Lina demanded for solid statistics showing that in the case of each and every
crime in the death penalty bill, there was a significantly higher incidence of
each crime after the suspension of the death penalty on February 2, 1987
when the 1987 Constitution was ratified by the majority of the Filipino people,
than before such ratification.[31] Inasmuch as the re-impositionists could not
satisfy the abolitionists with sufficient statistical data for the latter to accept
the alarming upsurge of heinous crimes as a compelling reason justifying the
reimposition of the death penalty, Senator Lina concluded that there were, in
fact, no compelling reasons therefor. In the alternative, Senator Lina argued
that the compelling reason required by the constitution was that "the State
has done everything in its command so that it can be justified to use an
inhuman punishment called death penalty".[32] The problem, Senator Lina
emphasized, was that even the re-impositionists admit that there were still
numerous reforms in the criminal justice system that may and must be put in
place, and so clearly, the recourse to the enactment of a death penalty bill
was not in the nature of a last resort, hence, unconstitutional in the absence
of compelling reasons. As an initial reaction to Senator Lina's contentions,
Senator Tolentino explained that the statement in the preamble is a general
one and refers to all the crimes covered by the bill and not to specific crimes.
He added that one crime may not have the same degree of increase in
incidence as the other crimes and that the public demand to impose the
death penalty is enough compelling reason.[33]
Equally fit to the task was Senator Wigberto Taada to whom the battle lines
were clearly drawn. He put to issue two things: first, the definition of "heinous
crimes" as provided for in the death penalty bill; and second, the statement
of compelling reasons for each and every capital crime. His interpellation of
Senator Tolentino clearly showed his objections to the bill:
"Senator Taada. x x x But what would make crimes heinous, Mr. President?
Are crimes heinous by their nature or elements as they are described in the
bill or are crimes heinous because they are punished by death, as bribery
and malversation are proposed to be punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but that
is not supposed to be the exclusive criterion. The nature of the offense is the
most important element in considering it heinous but, at the same time, we
should consider the relation of the offense to society in order to have a
complete idea of the heinous nature of these offenses.
In the case of malversation or bribery, for instance, these offenses by
themselves connected with the effect upon society and the government have
made them fall under the classification of heinous crimes. The compelling
reason for imposing the death penalty is when the offenses of malversation
and bribery becomes so grave and so serious as indicated in the substitute
bill itself, then there is a compelling reason for the death penalty.
34
Senator Taada. With respect to the compelling reasons, Mr. President, does
the Gentleman believe that these compelling reasons, which would call for
the reimposition of the death penalty, should be separately, distinctly and
clearly stated for each crime so that it will be very clear to one and all that
not only are these crimes heinous but also one can see the compelling
reasons for the reimposition of the death penalty therefor?
Senator Tolentino. Mr. President, that matter was actually considered by the
Committee. But the decision of the Committee was to avoid stating the
compelling reason for each and every offense that is included in the
substitute measure. That is why in the preamble, general statements were
made to show these compelling reasons. And that, we believe, included in
the bill, when converted into law, would be sufficient notice as to what were
considered compelling reasons by the Congress, in providing the death
penalty for these different offenses.
If a matter like this is questioned before the Supreme Court, I would suppose
that with the preamble already in general terms, the Supreme Court would
feel that it was the sense of Congress that this preamble would be applicable
to each and every offense described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for
each and every offense.
Senator Taada. Mr. President, I am thinking about the constitutional
limitations upon the power of Congress to enact criminal legislation,
especially the provisions on the Bill of Rights, particularly the one which says
that no person shall be held to answer for a criminal offense without due
process of law.
Can we not say that under this provision, it is required that the compelling
reasons be so stated in the bill so that the bill, when it becomes a law, will
clearly define the acts and the omissions punished as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as substantive law,
this is sufficient. The question of whether there is due process will more or
less be a matter of procedure in the compliance with the requirements of the
Constitution with respect to due process itself which is a separate matter
from the substantive law as to the definition and penalty for crimes.
Senator Taada. Under the Constitution, Mr. President, it appears that the
reimposition of the death penalty is subject to three conditions and these
are:
1. Congress should so provide such reimposition of the death penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution, paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress is bound to state clearly the
compelling reasons for the reimposition of the death penalty for each crime,
as well as the elements that make each of the crimes heinous included in
the bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I believe
that whether we state the compelling reasons or not, whether we state why a
certain offense is heinous, is not very important. If the question is raised in
the Supreme Court, it is not what we say in the bill that will be controlling but
what the Supreme Court will fell as a sufficient compelling reason or as to
the heinous nature whether the crime is heinous or not. The accused can
certainly raise the matter of constitutionality but it will not go into the matter
of due process. It will go into the very power of Congress to enact a bill
imposing the death penalty. So that would be entirely separate from the
matter of due process." [34]
Senator Francisco Tatad, on his part, pointed out that the death penalty bill
violated our international commitment in support of the worldwide abolition of
capital punishment, the Philippines being a signatory to the International
Covenant on Civil and Political Rights and its Second Optional Protocol.
Senator Ernesto Herrera clarified, however, that in the United Nations,
subject matters are submitted to the different committees which vote on
them for consideration in the plenary session. He stressed that unless
approved in the plenary session, a declaration would have no binding effect
on signatory countries. In this respect, the Philippines cannot be deemed
irrevocably bound by said covenant and protocol considering that these
agreements have reached only the committee level.[35]
After the protracted debate, the Members of the Senate voted on Senate Bill
No. 891 on third reading. With seventeen (17) affirmative votes, four (4)
35
negative votes, and one abstention, the death penalty bill was approved on
third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August 16,
1993 was a vindication of, the House of Representatives. The House had, in
the Eight Congress, earlier approved on third reading House Bill No. 295 on
the restoration of the death penalty for certain heinous crimes. The House
was in effect rebuffed by the Senate when the Senate killed House Bill No.
295 along with other bills coming from the House. House Bill No. 295 was
resurrected during the Ninth Congress in the form of House Bill No. 62 which
was introduced by twenty one (21) Members of the House of
Representatives on October 27, 1992. House Bill No. 62 was a merger of
House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238,
3576 and 3632 authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably
essayed the constitutional vesting in Congress of the power to re-impose the
death penalty for compelling reasons invoking heinous crimes as well as the
nature of this constitutional pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:
'Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress shall thereafter provide for it . . .'
The phrase 'unless, for compelling reasons involving heinous crimes, the
Congress shall thereafter provide for it was introduced as an amendment by
then Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the
death penalty was not completely abolished by the 1987 Constitution.
Rather, it merely suspended the death penalty and gave Congress the
discretion to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm.
Ricardo Romulo said, and I quote:
"'The people should have the final say on the subject, because, at some
future time, the people might want to restore death penalty through initiative
and referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is entirely
possible in the future that circumstances may arise which we should not
preclude today.
xxx xxx xxx
I believe that [there] are enough compelling reasons that merit the
reimposition of the capital punishment. The violent manner and the
viciousness in which crimes are now committed with alarming regularity,
show very clearly a patent disregard of the law and a mockery of public
peace and order.
In the public gallery section today are the relatives of the victims of heinous
crimes the Hultmans, the Maguans, the Vizcondes, the Castanoses, and
many more, and they are all crying for justice. We ought to listen to them
because their lives, their hopes, their dreams, their future have fallen
asunder by the cruel and vicious criminality of a few who put their selfish
interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent
manner in which the same was committed or by the reason of its inherent
viciousness, shows a patent disregard and mockery of the law, public peace
and order, or public morals. It is an offense whose essential and inherent
viciousness and atrocity are repugnant and outrageous to a civilized society
and hence, shock the moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely
daughters, will stand in the people's memory for many long years as the
epitome of viciousness and atrocity that are repugnant to civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young
business executive, was and still is an outrage that shocks the moral self of
our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high
school student who dreamt of becoming a commercial model someday, at
36
the hands of a crazed man was so repulsive, so brutal that it offends the
sensibilities of Christians and non-Christians alike
The cold-blooded double murder of Cochise Bernabe and Beebom
Castanos, the lovely and promising couple from the University of the
Philippines, is eternally lodged in the recesses of our minds and still makes
our stomach turn in utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if no radical action is taken by
this body in restoring death penalty as a positive response to the
overwhelming clamor of the people, then, as Professor Esteban Bautista of
the Philippine Law Center said, and I quote:
'When people begin to believe that organized society is unwilling or unable
to impose upon criminal offenders the punishment they deserve, there are
sown the seeds of anarchy of self-help, of vigilante justice and lynch law.
The people will take the law upon their hands and exact vengeance in the
nature of personal vendetta.'
It is for this reason, Mr. Speaker, that I stand here and support House Bill No.
62.
As duly elected Representatives of our people, collectively, we ought to
listen to our constituents and heed their plea a plea for life, liberty and
pursuit of their happiness under a regime of justice and democracy, and
without threat that their loves ones will be kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could rely on for
justice. A law that will exact retribution for the victims. A law that will deter
future animalistic behavior of the criminal who take their selfish interest over
and above that of society. A law that will deal a deathblow upon all heinous
crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we
hold dear and sacred, let us restore the death penalty."[36]
A studious comparison of the legislative proceedings in the Senate and in
the House of Representatives reveals that, while both Chambers were not
wanting of oppositors to the death penalty, the Lower House seemed less
quarrelsome about the form of the death penalty bill as a special law
specifying certain heinous crimes without regard to the provisions of the
Revised Penal Code and more unified in the perception of what crimes are
heinous and that the fact of their very heinousness involves the compulsion
and the imperative to suppress, if not completely eradicate, their occurrence.
Be it the foregoing general statement of Representative Sanchez or the
following details of the nature of the heinous crimes enumerated in House
Bill No. 62 by Representative Miguel L. Romero of Negros Oriental, there
was clearly, among the hundred or so re-impositionists in the Lower House,
no doubt as to their cause:
"My friends, this bill provides for the imposition of the death penalty not only
for the importation, manufacture and sale of dangerous drugs, but also for
other heinous crimes such as reason; parricide; murder; kidnapping;
robbery; rape as defined by the Revised Penal Code with or without
additionally defined circumstances; plunder, as defined in R.A. 7080; piracy,
as defined under Section 2 of PD 532; carnapping, as defined in Section 2 of
RA 6539, when the owner, driver or occupant is killed; hijacking, as defined
in xxx RA 6235; and arson resulting in the death of any occupants.
All these crimes have a common denominator which qualifies them to the
level of heinous crimes. A heinous crime is one which, by reason of its
inherent or manifest wickedness, viciousness, atrocity or perversity, is
repugnant and outrageous to the common standards of decency and
morality in a just and civilized society.
For instance, the crime of treason is defined as a breach of allegiance to a
government, committed by a person who owes allegiance to it (U.S. v. Abad
1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity and
obedience which individuals owe to the government under which they live or
to their sovereign in return for the protection which they receive (52 Am Jur
797).
In kidnapping, the though alone of one's loved one being held against his or
her own will in some unidentified xxx house by a group of scoundrels who
are strangers is enough terrify and send shivers of fear through the spine of
any person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is
being punished by death is the fact that the perpetrator, at the time of the
commission of the crime, thinks nothing of the other crime he commits and
37
sees it merely as a form of self-amusement. When a homicide is committed
by reason of the robbery, the culprits are perceived as willing to take human
life in exchange for money or other personal property.
In the crime of rape, not only do we speak of the pain and agony of the
parents over the personal shock and suffering of their child but the stigma of
the traumatic and degrading incident which has shattered the victim's life
and permanently destroyed her reputation, not to mention the ordeal of
having to undergo the shameful experience of police interrogation and court
hearings.
Piracy, which is merely a higher form of robbery, is punished for the universal
hostility of the perpetrators against their victims who are passengers and
complement of the vessel, and because of the fact that, in the high seas, no
one may be expected to be able to come to the rescue of the helpless
victims. For the same reason, Mr. Speaker, the crime of air piracy is
punished due to the evil motive of the hijackers in making unreasonable
demands upon the sovereignty of an entire nation or nations, coupled with
the attendant circumstance of subjecting the passengers to terrorism." [37]
The debate on House Bill No. 62 lasted from October 27, 1992 to February
11, 1993. On February 11, 1993, the Members of the House of
Representatives overwhelmingly approved the death penalty bill on second
reading.
On February 23, 1993, after explaining their votes, the Members of the
House of Representatives cast their vote on House Bill No. 62 when it was
up for consideration on third reading. [38] The results were 123 votes in
favor, 26 votes against, and 2 abstentions
After the approval on third reading of House Bill No. 62 on February 23,
1993 and of Senate Bill No. 891 on August 16, 1993, the Bicameral
Conference Committee convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to
Impose the Death Penalty on Certain Heinous Crimes, Amending for that
Purpose the Revised Penal Code, as Amended, Other Special Penal Laws,
and for Other Purposes," took effect.[39]
Between December 31, 1993, when R.A. No. 7659 took effect, and the
present time, criminal offenders have been prosecuted under said law, and
one of them, herein accused-appellant, has been, pursuant to said law,
meted out the supreme penalty of death for raping his ten-year old daughter.
Upon his conviction, his case was elevated to us on automatic review. On
June 25, 1996, we affirmed his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court's affirmation of
his death sentence and raises for the first time the issue of the
constitutionality of R.A. 7659. His thesis is two-fold: (1) that the death penalty
law is unconstitutional per se for having been enacted in the absence of
compelling reasons therefor; and (2) that the death penalty for rape is a
cruel, excessive and inhuman punishment in violation of the constitutional
proscription against punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-
appellant's view that Congress enacted R.A. No. 7659 without complying
with the twin requirements of compelling reasons and heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A. No.
7659 as unfurled in the beginning of this disquisition, necessarily provide the
context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress
the power to re-impose the death penalty "for compelling reasons involving
heinous crimes". This power is not subsumed in the plenary legislative power
of Congress, for it is subject to a clear showing of "compelling reasons
involving heinous crimes."
The constitutional exercise of this limited power to re-impose the death
penalty entails (1) that Congress define or describe what is meant by
heinous crimes; (2) that Congress specify and penalize by death, only
crimes that qualify as heinous in accordance with the definition or description
set in the death penalty bill and/or designate crimes punishable by reclusion
perpetua to death in which latter case, death can only be imposed upon the
attendance of circumstances duly proven in court that characterize the crime
to be heinous in accordance with the definition or description set in the death
penalty bill; and (3) that Congress, in enacting this death penalty bill be
singularly motivated by "compelling reasons involving heinous crimes."
38
In the second whereas clause of the preamble of R.A. No. 7659, we find the
definition or description of heinous crimes. Said clause provides that
"x x x the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent
or manifest wickedness, viciousness, atrocity and perversity are repugnant
and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society."
Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando,
[40] traced the etymological root of the word "heinous" to the Early Spartans'
word, "haineus", meaning, hateful and abominable, which, in turn, was from
the Greek prefix "haton", denoting acts so hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient criterion of
what is to be considered a heinous crime. This criterion is deliberately
undetailed as to the circumstances of the victim, the accused, place, time,
the manner of commission of crime, its proximate consequences and effects
on the victim as well as on society, to afford the sentencing authority
sufficient leeway to exercise his discretion in imposing the appropriate
penalty in cases where R.A. No. 7659 imposes not a mandatory penalty of
death but the more flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and
Taada grilled the sponsors of the bill as regards what they perceived as a
mere enumeration of capital crimes without a specification of the elements
that make them heinous. They were oblivious to the fact that there were two
types of crimes in the death penalty bill: first, there were crimes penalized by
reclusion perpetua to death; and second, there were crimes penalized by
mandatory capital punishment upon the attendance of certain specified
qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion
perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the
following four circumstances: (a) the victim was detained for more than three
days; (b) it was committed simulating public authority; (c) serious physical
injuries were inflicted on the victim or threats to kill him were made; and (d) if
the victim is a minor, except when the accused is any of the parents, female
or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings or edifice;
(b) a building where people usually gather; (c) a train, ship or airplane for
public use; (d) a building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying evidence Or a crime; (f)
an arsenal, fireworks factory, or government museum; and (g) a storehouse
or factory of explosive materials located in an inhabited place; or regardless
of what is burned, if the arson is perpetrated by two or more persons (Sec.
10);
(9) Rape attended by any of the following circumstances: (a) the rape is
committed with a deadly weapon; (b) the rape is committed by two or more
persons; and (c) the rape is attempted or frustrated and committed with
homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs (Sec. 13);
(12) Sale, administration, delivery, distribution, and transportation of
prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
39

(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec.
15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs
confiscated by the arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of
another to implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped
motor vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform penalty for
all of them being not mandatory death but the flexible penalty of reclusion
perpetua to death. In other words, it is premature to demand for a
specification of the heinous elements in each of foregoing crimes because
they are not anyway mandatorily penalized with death. The elements that
call for the imposition of the supreme penalty of death in these crimes, would
only be relevant when the trial court, given the prerogative to impose
reclusion perpetua, instead actually imposes the death penalty because it
has, in appreciating the evidence proffered before it, found the attendance of
certain circumstances in the manner by which the crime was committed, or
in the person of the accused on his own or in relation to the victim, or in any
other matter of significance to the commission of the crime or its effects on
the victim or on society, which circumstances characterize the criminal acts
as grievous, odious, or hateful, or inherently or manifestly wicked, vicious,
atrocious or perverse as to be repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered
society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death is
imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains from
arresting or prosecuting an offender who has committed a crime punishable
by reclusion perpetua and/or death in consideration of any offer, promise, gift
or present, he shall suffer the penalty for the offense which was not
prosecuted.
If it is the public officer who asks or demands such gift or present, he shall
suffer the penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in the death
of the victim or the victim is raped, tortured or subjected to dehumanizing
acts
"The penalty shall be death where the kidnapping or detention was
committed for the purpose of ransom from the victim or any other person,
even if none of the circumstances above-mentioned were present in the
commission of the offense.
When the victim is killed or dies as a consequence of the detention or is
raped, or is subject to torture or dehumanizing acts, the maximum penalty [of
death] shall be imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized under
this Article, death results, the mandatory penalty of death shall be imposed."
(Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and qualified
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
xxx xxx xxx
40
When by reason or on the occasion of the rape, a homicide is committed,
the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent or the
victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the Philippines or
the Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of prohibited
drugs where the victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of victim
thereof, the maximum penalty [of death] herein provided shall be imposed."
(Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where
the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum of the penalty [of death] shall be imposed in every case where a
prohibited drug is administered, delivered or sold to a minor who is allowed
to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person
using the same in such den, dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer notwithstanding the provisions
of Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and
transportation of regulated drugs where the victim is a minor or the victim
dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a regulated drug involved in any
offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty [of death] herein provided shall be imposed."
(Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated drugs where
the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum penalty [of death] herein provided shall be imposed in every case
where a regulated drug is administered, delivered or sold to a minor who is
allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using
the same in such den, dive or resort, the maximum penalty herein provided
shall be imposed on the maintainer notwithstanding the provisions of Section
20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or officers
including members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7,
8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and
19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if
those found guilty or any of the same offenses are government officials,
employees or officers including members of police agencies and the armed
forces." (Sec. 19)
41
(10) Planting of dangerous drugs as evidence in drug offenses with the
mandatory death penalty if convicted are government officials, employees or
officers
"Any such above government official, employee or officer who is found guilty
of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13
of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous
Drugs Act of 1972) in the person or in the immediate vicinity of another as
evidence to implicate the latter, shall suffer the same penalty as therein
provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the offender
of his public position, the penalty to be imposed shall be in its maximum [of
death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated crime
group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of
gain in the commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of
heinousness must be squarely applied.
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or the
victim is treated like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human being. The right of
a person is not only to live but to live a quality life, and this means that the
rest of society is obligated to respect his or her individual personality, the
integrity and the sanctity of his or her own physical body, and the value he or
she puts in his or her own spiritual, psychological, material and social
preferences and needs. Seen in this light, the capital crimes of kidnapping
and serious illegal detention for ransom resulting in the death of the victim or
the victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death, and drug offenses involving minors or resulting in
the death of the victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention where the
victim is detained for more than three days or serious physical injuries were
inflicted on the victim or threats to kill him were made or the victim is a minor,
robbery with homicide, rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of the carnapped vehicle is
killed or raped, which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger
socio-political and economic context in which the state finds itself to be
struggling to develop and provide for its poor and underprivileged masses.
Reeling from decades of corrupt tyrannical rule that bankrupted the
government and impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of corruption,
dishonesty, greed and syndicated criminality that so deeply entrenched itself
in the structures of society and psyche of the populace. Terribly lacking the
money to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an
actual threat to the very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this context, no less heinous
are the effects and repercussions of crimes like qualified bribery, destructive
arson resulting in death, and drug offenses involving government officials,
employees or officers, that their perpetrators must not be allowed to cause
further destruction and damage to society.
We have no doubt, therefore, that insofar as the element of heinousness is
concerned, R.A. No. 7659 has correctly identified crimes warranting the
mandatory penalty of death. As to the other crimes in R.A. No. 7659
punished by reclusion perpetua to death, they are admittingly no less
abominable than those mandatorily penalized by death. The proper time to
determine their heinousness in contemplation of law, is when on automatic
review, we are called to pass on a death sentence involving crimes
punishable by reclusion perpetua to death under R.A. No. 7659, with the trial
court meting out the death sentence in exercise of judicial discretion. This is
not to say, however, that the aggravating circumstances under the Revised
Penal Code need be additionally alleged as establishing the heinousness of
the crime for the trial court to validly impose the death penalty in the crimes
under R.A. No. 7659 which are punished with the flexible penalty of reclusion
perpetua to death.
42
In the first place, the 1987 Constitution did not amend or repeal the
provisions of the Revised Penal Code relating to aggravating circumstances.
Secondly, R.A. No. 7659, while it specifies circumstances that generally
qualify a crime provided therein to be punished by the maximum penalty of
death, neither amends nor repeals the aggravating circumstances under the
Revised Penal Code. Thus, construing R.A. No. 7659 in parimateria with the
Revised Penal Code, death may be imposed when (1) aggravating
circumstances attend the commission of the crime as to make operative the
provision of the Revised Penal Code regarding the imposition of the
maximum penalty; and (2) other circumstances attend the commission of the
crime which indubitably characterize the same as heinous in contemplation
of R.A. No. 7659 that justify the imposition of the death, albeit the imposable
penalty is reclusion perpetua to death. Without difficulty, we understand the
rationale for the guided discretion granted in the trial court to cognize
circumstances that characterize the commission of the crime as heinous.
Certainly there is an infinity of circumstances that may attend the
commission of a crime to the same extent that there is no telling the evil that
man is capable of. The legislature cannot and need not foresee and inscribe
in law each and every loathsome act man is capable of. It is sufficient thus
that R.A. 7659 provides the test and yardstick for the determination of the
legal situation warranting the imposition of the supreme penalty of death.
Needless to say, we are not unaware of the ever existing danger of abuse of
discretion on the part of the trial court in meting out the death sentence.
Precisely to reduce to nil the possibility of executing an innocent man or one
criminal but not heinously criminal, R.A. 7659 is replete with both procedural
and substantive safeguards that ensure only the correct application of the
mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional requirement
that the death penalty be re-imposed for compelling reasons involving
heinous crimes, we note that the main objection to the death penalty bill
revolved around the persistent demand of the abolitionists for a statement of
the reason in each and every heinous crime and statistical proof the such
compelling reason actually exists.
We believe, however, that the elements of heinousness and compulsion are
inseparable and are, in fact, interspersed with each other. Because the
subject crimes are either so revolting and debasing as to violate the most
minimum of the human standards of decency or its effects, repercussions,
implications and consequences so destructive, destabilizing, debilitating, or
aggravating in the context of our socio-political and economic agenda as a
developing nation, these crimes must be frustrated, curtailed and altogether
eradicated. There can be no ifs or buts in the face of evil, and we cannot
afford to wait until we rub elbows with it before grasping it by the ears and
thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first be
pursued and implemented before the death penalty be re-imposed in case
such reforms prove unsuccessful. They claimed that the only compelling
reason contemplated of by the constitution is that nothing else but the death
penalty is left for the government to resort to that could check the chaos and
the destruction that is being caused by unbridled criminality. Three of our
colleagues, are of the opinion that the compelling reason required by the
constitution is that there occurred a dramatic and significant change in the
socio-cultural milieu after the suspension of the death penalty on February 2,
1987 such as an unprecedented rise in the incidence of criminality. Such are,
however, interpretations only of the phrase "compelling reasons" but not of
the conjunctive phrase "compelling reasons involving heinous crimes". The
imposition of the requirement that there be a rise in the incidence of
criminality because of the suspension of the death penalty, moreover, is an
unfair and misplaced demand, for what it amounts to, in fact, is a
requirement that the death penalty first proves itself to be a truly deterrent
factor in criminal behavior. If there was a dramatically higher incidence of
criminality during the time that the death penalty was suspended, that would
have proven that the death penalty was indeed a deterrent during the years
before its suspension. Suffice it to say that the constitution in the first place
did not require that the death penalty be first proven to be a deterrent; what it
requires is that there be compelling reasons involving heinous crimes.
Article III, Section 19 (1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may re-impose
the death penalty. Nothing in the said provision imposes a requirement that
for a death penalty bill to be valid, a positive manifestation in the form of a
higher incidence of crime should first be perceived and statistically proven
following the suspension of the death penalty. Neither does the said
provision require that the death penalty be resorted to as a last recourse
when all other criminal reforms have failed to abate criminality in society. It is
immaterial and irrelevant that R.A. No. 7659 cites that there has been an
"alarming upsurge of such crimes", for the same was never intended by said
law to be the yardstick to determine the existence of compelling reasons
involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that
"the Congress, in the interest of justice, public order and rule of law, and the
43
need to rationalize and harmonize the penal sanctions for heinous crimes,
finds compelling reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other ground for attacking
the constitutionality of R.A. No. 7659, i.e., that the death penalty imposed in
rape is violative of the constitutional proscription against cruel, degrading or
inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel,
degrading or inhuman punishment as ruled by the United States (U.S.)
Supreme Court in Furman v. Georgia.[41] To state, however, that the U.S.
Supreme Court, in Furman, categorically ruled that the death penalty is a
cruel, degrading or inhuman punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the
arbitrariness pervading the procedures by which the death penalty was
imposed on the accused by the sentencing jury. Thus, the defense theory in
Furman centered not so much on the nature of the death penalty as a
criminal sanction but on the discrimination against the black accused who is
meted out the death penalty by a white jury that is given the unconditional
discretion to determine whether or not to impose the death penalty. In fact,
the long road of the American abolitionist movement leading to the landmark
case of Furman was trekked by American civil rights advocates zealously
fighting against racial discrimination. Thus, the U.S. Supreme Court stated in
Furman:
"We cannot say from facts disclosed in these records that these defendants
were sentenced to death because they were black. Yet our task is not
restricted to an effort to divine what motives impelled these death penalties.
Rather, we deal with a system of law and of justice that leaves to the
uncontrolled discretion of judges or juries the determination whether
defendants committing these crimes should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no permissible
'caste' aspect of law enforcement. Yet we know that the discretion of judges
and juries in imposing the death penalty enables the penalty to be selectively
applied, feeding prejudices against the accused if he is poor and despised x
x x.
xxx
Thus, these discretionary statutes are unconstitutional in their operation.
They are pregnant with discrimination and discrimination is an ingredient not
compatible with the idea of equal protection of the laws that is implicit in the
ban on 'cruel and unusual' punishments."
Furman, thus, did not outlaw the death penalty because it was cruel and
unusual per se. While the U.S. Supreme Court nullified all discretionary
death penalty statutes in Furman, it did so because the discretion which
these statutes vested in the trial judges and sentencing juries was
uncontrolled and without any parameters, guidelines, or standards intended
to lessen, if not altogether eliminate, the intervention of personal biases,
prejudices and discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-
enacted their death penalty statutes now bearing the procedural checks that
were required by the U.S. Supreme Court, said court affirmed the
constitutionality of the new death penalty statutes in the cases of Gregg v.
Georgia,[42] Jurek v. Texas,[43] and Profitt v. Florida.[44]
Next, accused-appellant asseverates that the death penalty is a cruel,
inhuman or degrading punishment for the crime of rape mainly because the
latter, unlike murder, does not involve the taking of life. In support of his
contention, accused-appellant largely relies on the ruling of the U.S.
Supreme Court in Coker v. Georgia.[45]
In Coker, the U.S. Supreme Court ruled as follows:
"x x x It is now settled that the death penalty is not invariably cruel and
unusual punishment within the meaning of the Eighth Amendment; it is not
inherently barbaric or an unacceptable mode of punishment for crime;
neither is it always disproportionate to the crime for which it is imposed. It is
also established that imposing capital punishment, at least for murder, in
accordance with the procedures provided under the Georgia statutes saves
the sentence from the infirmities which led the Court to invalidate the prior
Georgia capital punishment statute in Furman v. Georgia x x x.
xxx
44
In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty
for deliberate murder was neither the purposeless imposition of severe
punishment nor a punishment grossly disproportionate to the crime. But the
Court reserved the question of the constitutionality of the death penalty when
imposed for other crimes. x x x
That question, with respect to rape of an adult woman, is now before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in the statutes
providing the punishment for that crime, has been dramatically different. In
reviving death penalty laws to satisfy Furman's mandate, none of the States
that had not previously authorized death for rape chose to include rape
among capital felonies. Of the 16 States in which rape had been a capital
offense, only three provided the death penalty for rape of an adult woman in
their revised statutes -- Georgia, North Carolina. and Louisiana. In the latter
two States, the death penalty was mandatory for those found guilty, and
those laws were invalidated by Woodson and Roberts. When Louisiana and
North Carolina, respondent to those decisions, again revised their capital
punishment laws, they reenacted the death penalty for murder but not for
rape; none of the seven other legislatures that to our knowledge have
amended or replaced their death penalty statutes since July 2, 1976,
including four States (in addition to Louisiana and North Carolina) that had
authorized the death sentence for rape prior to 1972 and had reacted to
Furman with mandatory statutes, included rape among the crimes for which
death was an authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also authorized
the death penalty in some rape cases, but only where the victim was a child,
and the rapist an adult, the Tennessee statute has since been invalidated
because the death sentence was mandatory. x x x The upshot is that
Georgia is the sole jurisdiction in the United States at the present time that
authorizes a sentence of death when the rape victim is an adult woman, and
only two other jurisdictions provide capital punishment when the victim is a
child
The current judgment with respect to the death penalty for rape is not wholly
unanimous among state legislatures, but it obviously weighs very heavily on
the side of rejecting capital punishment as a suitable penalty for raping an
adult woman.
x x x [T]he legislative rejection of capital punishment for rape strongly
confirms our own judgment, which is that death is indeed a disproportionate
penalty for the crime of raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total contempt for the
personal integrity and autonomy of the female victim and for the latter's
privilege of choosing those with whom intimate relationships are to be
established. Short of homicide, it is the 'ultimate violation of self.' It is also a
violent crime because it normally involves force, or the threat of force or
intimidation, to over come the will and the capacity of the victim to resist.
Rape is very often accompanied by physical injury to the female and can
also inflict mental and psychological damage. Because it undermines the
community's sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral
depravity and of the injury to the person and to the public, it does not
compare with murder, which does involve the unjustified taking of human life.
Although it may be accompanied by another crime, rape by definition does
not include the death of or even the serious injury to another person. The
murderer kills; the rapist, if no more than that, does not. Life is over for the
victim of the murderer; for the rape victim, life may not be nearly so happy as
it was, but it is not over and normally is not beyond repair. We have the
abiding conviction that the death penalty, which 'is unique in its severity and
irrevocability' x x x is an excessive penalty for the rapist who, as such, does
not take human life."
The U.S. Supreme Court based its foregoing ruling on two grounds: first, that
the public has manifested its rejection of the death penalty as a proper
punishment for the crime of rape through the willful omission by the state
legislatures to include rape in their new death penalty statutes in the
aftermath of Furman; and second, that rape, while concededly a dastardly
contemptuous violation of a woman's spiritual integrity, physical privacy, and
psychological balance, does not involve the taking of life.
Anent the first ground, we fail to see how this could have any bearing on the
Philippine experience and in the context of our own culture.
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Anent the second ground, we disagree with the court's predicate that the
gauge of whether or not a crime warrants the death penalty or not, is the
attendance of the circumstance of death on the part of the victim. Such a
premise is in fact an ennobling of the biblical notion of retributive justice of
"an eye for an eye, a tooth for a tooth". We have already demonstrated
earlier in our discussion of heinous crimes that the forfeiture of life simply
because life was taken, never was a defining essence of the death penalty in
the context of our legal history and cultural experience; rather, the death
penalty is imposed in heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so deeply dehumanized a
person or criminal acts with severely destructive effects on the national
efforts to lift the masses from abject poverty through organized governmental
strategies based on a disciplined and honest citizenry, and because they
have so caused irreparable and substantial injury to both their victim and the
society and a repetition of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be permanently
prevented from doing so. At any rate, this court has no doubts as to the
innate heinousness of the crime of rape, as we have held in the case of
People v. Cristobal: [46]
"Rape is the forcible violation of the sexual intimacy of another person. It
does injury to justice and charity. Rape deeply wounds the respect, freedom,
and physical and moral integrity to which every person has a right. It causes
grave damage that can mark the victim for life. It is always an intrinsically evil
act xxx an outrage upon decency and dignity that hurts not only the victim
but the society itself."
We are not unaware that for all the legal posturings we have so essayed
here, at the heart of the issue of capital punishment is the wistful,
sentimental life-and-death question to which all of us, without thinking, would
answer, "life, of course, over death". But dealing with the fundamental
question of death provides a context for struggling with even more basic
questions, for to grapple with the meaning of death is, in an indirect way, to
ask the meaning of life. Otherwise put, to ask what the rights are of the dying
is to ask what the rights are of the living.
"Capital punishment ought not to be abolished solely because it is
substantially repulsive, if infinitely less repulsive than the acts which invoke
it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve the humane
society we will have to retain sufficient strength of character and will to do
the unpleasant in order that tranquillity and civility may rule comprehensively.
It seems very likely that capital punishment is a x x x necessary, if limited
factor in that maintenance of social tranquillity and ought to be retained on
this ground. To do otherwise is to indulge in the luxury of permitting a sense
of false delicacy to reign over the necessity of social survival." [47]
WHEREFORE, in view of all the foregoing, the Motion for Reconsideration
and the Supplemental Motion for Reconsideration are hereby DENIED[48]
for LACK OF MERIT.
SO ORDERED.
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