" ' H! II

(PER INSTRUCTION) ---· ·----- ·--- - - ----··--- .. - ·---·- -- - --~·--·---------·-----·

RE:..~~--- -SUPREME COURT

MANILA

EN BANC

Petitioner,

SUPR°f:Mlll COURT .-..,.. O":'-ICE OF THE CLERK OF COU"' •

~Jf. N BANC R\CEIVED

OCT 03 ~13 6~~~~·~~~'!::ft-tt~~~ 11ME: _...Jl'..Lc °W-'AJ-1+-00:::::::::::::-=::::::::::~---

G.R. No. 180016 (Article 315, Revised Penal Code)

·:OF THE PHILIPPINES, Respondent.

e undersigned most respectfully submits this Brief in response to the

f Resolution ("Notice") issued by this Honorable Court on 16 July 2013 .

.. ptlce invited.several amici curiae to submit their views on the following ·l:,

Procedurally, may the Court exercise the power of judicial review even when the petition fails to raise any constitutional challenge? Under what circumstances (if any) can such exercise be done?

May a mode or duration of penalty violate the Equal Protection Clause or the Unusual Punishment Clause? If yes, what standards must be m~t before a penal law or parts of it can be declared unconstitutional on either of those two grounds?

Applying such standards, does Article 315 of the Revised Penal Code violate the Equal Protection Clause or the Unusual Punishment Clause?

2

; s is not the first time a case involving the constitutionality of Article

.... e Revised Penal Code is brought before this Court. In Lim v. People, 1

ers assailed the constitutionality of P.D. 818, a decree which amended

15 of the Revised Penal Code, by increasing the penalties for estafa, for

' · olative of the due process clause, the right to bail and the provision

cruel, degrading or inhuman punishment enshrined under the

tion. This Court upheld the constitutionality of P.D. 818.

· e at first glance it may appear that the issues in Lim and in the

t case are similar, the factual circumstances of the two cases are so

t that the ruling in Lim cannot be applied to this case. Thus, despite the

t similarities between the two cases, the undersigned urges this Court to

Whether the Court may exercise the power of judicial review even when the petition fails to raise any constitutional challenge

Petitioner assails (for the first time) before this Honorable Court the

tutionality of Article 315 of the Revised Penal Code for being violative of

~~: el punishment clause under Article III, Section19(1) of the 1987

149276, September 27, 2002.

3

, : e Court has previously taken cognizance of issues despite the Jack of }jrisprudential requirements for judicial review when fundamental

· prudence has laid down the following requisites for this Court's ;:(:·,,:>'

''J.its power of judicial review: first, there must be before the Court an ii .

se calling for the exercise of judicial review; second, the question

e .Court must be ripe for adjudication; third, the person challenging

. · ty of the act must have standing to challenge; fourth, the question of

tionality must have been raised at the earliest opportunity; and lastly,

e of constitutionality must be the very lis mota of the case.2

enerally, this Court refrains from exercising its power of judicial review

foregoing requirements are present. This, however, admits of

As early as the case of People v. Hon. Judge Vera3, this Court declared

c)ourts, in the exercise of sound discretion, may determine the time

a question affecting the constitutionality of a statute should be

ted ... (t)hus, in criminal cases, although there is a very sharp conflict of ·\,.:,

',~)·•;','i'

,.,;gnties, it it said that the question may be raised for the first time at any

,, Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001; citing Board of Optometry v. Colet, ::~~~8, 103 (19%); Garcia v. Executive Secretary, 204 SCRA 516, S22 (1991); and Santos v. Northwest tAirlmes, 210 SCRA 256, 261 (1992).

1lev. Hon. Judge Vera, 65 Phil. 56.

~~88.

4

GSIS v. Montesclaros,5 this Court proceeded to resolve the issue of

ti~nality of the proviso in Section 18 of P.D. 1146 despite the

~tation of therein respondent that she was no longer interested in

This Court, through Justice Carpio, stated that "[s]ocial

}and public interest demand that [ ... ] the constitutionality of the proviso

olved ]" since "the issue involves not only the claim of [respondent] but

'lat of other surviving spouses who are similarly situated and whose claims

ould also ·deny based on the proviso." 6

Likewise, in Central Bank Employees v. BSP,7 this Court still resolved the

'fthe constitutionality of Section lS(c), Article II of R.A. 7653 even if the

.?ner had not alleged a comparable change in the factual milieu as regards h. ,, .. , ..

position classification and qualification standards of the

~: Ioyees of the BSP since the enactment of the new Central Bank Act.

~'.

. i1"Thus, this Court is not precluded from exercising its power of judicial

. ,·F ~F

.J'"w even if the present issue was belatedly raised. '~f'. id~'.L

·i\ft·;,;·.,

1.:C."·' '1i1.r~.!

·!!!~lB. The present issue has met the lis mota requirement. '~i),: '.~~f'.,:

ii•

'jt';It is an established rule in the exercise of the power of judicial review

',;'.:, }~1~e constitutionality of a statute will be passed upon only if, and to the

~tt ft that, it is directly and necessarily involved in a justiciable controversy ~'"

'1111.'>

'tf,/~', I

~1v: i6!1 'I

~CRA441. iJt445. "iNo.148208, December 15, 2004. ~I,·." ~~}}, .', ';:(~,(I

<1'f

5

ntial to the protection of the rights of the parties concerned. 8 Thus, ~.:)

"rit.tional issue (a) must be properly raised and presented in the case,

resolution is necessary to a determination of the case.9

the undersigned's view that petitioner has met the li.s mo ta

constitutionality of the impositfon of penalty prescribed by 1Article 315 of the Revised Penal Code was raised and presented at the

: earliest opportunity.

e , undersigned recogmzes the rule that issues involving

tionality must be raised at the earlist possible time. In Lim, the earliest

time petitioners could impugn the constitutionality of P.D. 818 (by

certiorari) was when the lower court denied their "Motion to Quash

ation and Warrant of Arrest."

In the present case, the earliest opportunity for petitioner to question the

·. contained in paragraph one of Article 315 would have been at the time \I.

·.~t.' •t¥.1:1,

•1;e)mposition of the penalty (i.e., at the lower court level). However, since ' \··~\

t~f tourt of Appeals modified the penalty (effectively increasing it) based on its ,, ~,11.,, rJil;i:,

'~t;'

''retation of paragraph one of Article 315, the opportunity to question such

, retation (as deviating from constitutional precepts) only arose after the ~it{/ ·~~·' l'!

:'ion on the appeal has been rendered. This being the case, the undersigned ~r 1

the view that the petitioner has timely raised the constitutional question.

~:;w Economic Protectionism Association, et. al. v. Ongpin, et. al., G.R No. 67752, April 10, 1989. Products Inc. v. Fertiphil Corporation, G.R. No. 166006, March 14, 2008.

6

f.rlie resolution of the constitutional issue raised is necess to the

the basis of the Notice furnished to the amicus curiae, the petitioner

to be appealing the Court of Appeal's affirmation of his

n. The issue raised is limited to the ( 1) validity of the modified

nd (2) the constitutionality of the Court of Appeal's interpretation of

lty clause in Article 315. From the undersigned's point of view, both

t titutional questions.

etitioner questions the validity of the modified penalty on the basis of

n. He argues that prices prevailing at the time of the enactment of the

'.Penal Code should be adjusted to take into account historical inflation

· therwise, a failure to take into account the circumstance of distinction

.· n the current value of the peso and the value of the peso in 1932 would

o operation the issue of equal protection of the laws .

. ,

Since the questions raised by petitioner depend on the constitutionality

e Court of Appeal's interpretation of the penalty clause in Article 315

~~,flier against the equal protection clause or the prohibition against cruel, gr,'?

i~ ''ding or inhuman punishment), this case cannot be resolved unless the

,("\''

~W~:. ;it;tltutional question is first answered. ~,I'\

,~\J t,;;

II. Whether a mode or duration of penalty violates the equal protection clause or the unusual punishment clause

7

Petitioner alleges that the portion of Article 315 that imposes a maximum

based on the amount of fraud exceeding P22,000.00 is unconstitutional

void for being disproportionate and excessively harsh.

A. Whether the penalty in Article 315 prescribes a cruel degrading or inhuman punishment.

In Padilla v. Court of Appeals, this Court stated that the severity of a

l,;I ip~nalty does not ipso facto make the same cruel and excessive. 10 It takes more JY !Ii' ~~/,:

{~an merely being harsh, excessive, out of proportion or severe for a penalty to ,~,/' 1~L !~e obnoxious to the Constitution. II Based on this principle, this Court has

i~1'1 /}onsistently overruled contentions of the defense that the penalty of fine or ·:if,~,

'.i{~:,· t ~~:~·°'. ·,

1\ffiprisonment authorized by the statute involved is cruel and degrading. I2

it>' ~1:1,

f' In People v. Alejandro, 13 the Court further explained that,

The law imposes the penalty of life imprisonment to death and a fine ranging from P20,000.00 to P30,000.00 regardless of the amount involved in the sale of prohibited drugs. This is not cruel punishment. It is settled that "it takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution" as it may be that it was prescribed to prevent or discourage the proliferation of crimes that are especially hurtful to the public interest. As Justice Tuason said in People v. Estoista. . . . The rampant lawlessness against property, person, and even the very security of

, the Government, directly traceable in large measure to promiscuous carrying and use of powerful weapons, justify imprisonment which in normal circumstances might appear excessive. If imprisonment from 5 to 10 years is out of proportion to the present case in view of certain circumstances, the law is not to be declared unconstitutional for this reason ... It takes more than

hadilla v. Court of Appeals, G.R. No. 121917, March 12, 1997. (iLim v. People, G.R. No. 149276, September 27, 2002.

,,Ud 13 People v. Alejandro, G.R. No. 94644, August 17, 1993, 225 SCRA 347.

':.merely being harsh, excessive, out of proportion, or severe for a penalty to be ,obnoxious to the Constitution. "The fact that the punishment authorized by

i(the statute is severe does not make it cruel and unusual." (24 C. J. S., 1187-'1188.) Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and plainly oppressive," "wholly

'.disproportionate to the nature of the offense as to shock the moral sense of the ·.•community." Having in mind the necessity for a radical measure and the . public interest at stake, we do not believe that five years' confinement for ,'possessing firearms, even as applied to appellant's and similar cases, can be said .. to be cruel and unusual, barbarous, or excessive to the extent of being ',shocking to public conscience.14

8

Following the ruling in Alejandro, for a penalty to be considered as cruel

usual, the Court must be guided by the following standards: (1) it must

', ~grantly and plainly oppressive; (2) it must be wholly disproportionate to 'i'.\;'.!1:', i"'' ·ir' ';:nature of the offense as to shock the moral sense of the community. &1;;,::··,

t:i~:" 1

lir

'plying this, the Court of Appeal's interpretation of the penalty cannot be ;;'(• ."~\

k·,' JI''

,,':'dered as cruel, degrading or inhuman.

B. Wliether the interpretation of the Court of Appeals on the applicable penalty violates the equal protection clause.

protection clause under the Constitution means that "no

'~;/ of persons shall be deprived of the same protection of laws

Q/'1

',:~h is enjoyed by other persons or other classes in the same place and in like

fil:

;f1nstances. "15 Thus, in People v. Cayat, this Court said that the guaranty of li\1

·~i(:,· Jequal protection of the laws is not violated by a law based on reasonable .iJ.'.:

i~'; 11

'ification.16 Classification, to be reasonable, must (1) rest on substantial

· ctions; (2) be germane to the purpose of the law; (3) not be limited to

/pp. 351-352[ underscore supplied].

')pine Rural Electric Cooperatives Association, Inc., et. al. v. DILG, G.R. No. 143076, June 10, 2003. 'pie v. Cayat, G.R. No. 45987, May 5, 1939, 68 Phil. 12, 18.

9

only; and (4) apply equally to all members of the same

· · e the above standard is usually applied to the classification made by

itself, the undersigned posits that the equal protection clause may be

test the constitutionality of the interpretation adopted by the Court of

Should this Court allow the interpretation of the Court of Appeals to

.•.

. will result in the discriminatory application of the law .

.l) The Court of Appeal's interpretation does not rest on substantial •,' ~

:1: distinctions.

be made between property-related cnmes whose

'es are based on fixed amounts and non-property-related crimes. Unlike ..

. rimes under the Revised Penal Code where the penalties are not affected

emal economic forces, the penalties in crimes of estafa under Article

obbery under Articles 299, 302 & 303, theft under Articles 308 to 311 are

endent on the value of the thing appropriated or amount embezzled,

Vulnerable to currency inflationary effects. Since the basis of the penalty

defrauded amount, historical inflation rates must be taken into account in

(2) The distinction is germane to the purpose of the law.

The distinction made between property-related crimes and non-

}tty-related crimes is germane to the purpose of the law. The Revised ...

'•· 1;

al Code divides the offenses according to their nature (i.e., crimes against

10

'ecurity and the laws of nations, crimes against the fundamental laws

( te, crimes against public order, crimes against persons, etc ... ). While

s' under the Revised Penal Code are mala in se, there is an underlying

e in the penalties imposed depending on the , nature of the offense.

,ersigned could only second-guess the intention of the drafters of the

, ode for doing so; but it appears that the intent behind this is to ensure

penalties imposed on property-related offense will relatively be lower

ose of non-property related offenses. Thus, any gradation on the basis of

3) The distinction applies to present and future conditions.

e undersigned maintains that the interpretation that takes into accolint

on rates is consistent with future conditions. Since the penalty will follow

ationary behavior of the peso, its imposition will have a uniform

,'( 4) The distinction applies equally to all members of the same class.

, As previously mentioned, the crimes of estafa under Article 315, robbery

,~; er Articles 299, 302 & 303, and theft under Articles 308 to 311, are all

.,:~~~ ~!,1: perty-related crimes whose penalties are dependent on the value of the

··g appropriated or amount embezzled making them susceptible to changes r.'f..'

'the valuation of the peso. Thus, the determination of their penalties must

ewise take into account inflationary rates.

,1\1, ' ~

:''l :I

'' ~'

r !

11

e theory of relative constitutionality as applied to Article 315 of the evised Penal Code

'·

·.the Central Bank Employees Case, 18 the Court applied the theory of ,.·,, '·

~onstitutionality", wherein the continued operation of a provision of

entral Bank Act will result into oppressive circumstances. The Court

''ed the theory as follows:

lie constitutionality of a statute cannot, in every instance, be determined by mere comparison of its provisions with applicable provisions of the

. nstitution, since the statute may be constitutionally valid as applied to one t of facts and invalid in its application to another." 19

'pplied to the present case, while Article 315 of the Revised Penal Code

.on its face as constitutionally valid, the manner by which it is applied

\,Court of Appeals to petitioner's case will result into an unreasonable

<>. uence for the petitioner. Instead of being qualified for probation based 1W1·

~ti ~1jnterpretation that takes into account adjustment for inflation, petitioner ~I· ;;':

~ be made to suffer the penalty of from four ( 4) years and two (2) months

.. ,., ~ .,

;)tlinimum to fifteen (15) years as maximum. This interpretation is plainly ~ 1~"1·'

.tf\', ;;1:·

unreasonable and oppressive. Furthermore the same

contrary to the principle that criminal statutes must be

reted liberally in favor of the accused. 20

~) It is worth emphasizing at this juncture that what is involved is the

§tial grant of liberty at an earlier period if an interpretation favorable to

;accused is adopted by this Court. In the hierarchy of rights, fundamental

Ruben E. Agpmo, Statutory Construction, 6th edition, 2009, pp. 397-408.

12

;~re given preferential treatment by this Court as demonstrated in the

'case of Philippine Blooming Mills Employees Organization v.

1 e Blooming Mills Co., Jnc.21 This Court could rely upon this

cement together with the commitment of the State under various

rights treaties affirming the duty of a State to promote and protect

'<rights as far as practicable. Courts occupy an indispensable role m

·ng with this duty through their interpretative function.

he mechanism suggested by the undersigned through judicial

ietation is not antithetical to the established rule that this Court in the ·~r !'/,,:,

fi~e of the power of judical review cannot encroach upon the power of the ~·J.

~;~'

~v· ~ture. As carefully demonstrated in the earlier portion of this Comment, 't:t,'

if: Jhin line between judicial interpretation and judicial legislation has not ~i i~r:I'

,'1breached on account of the judicious application of established doctrines "\,' ,;' 1\,•

.1::

, ~IOn a final note, the Court is now given the rare opportunity to revisit ,~ .. i?~:

·~je 315 of the Revised Penal Code whose retributive character may be in ';!-r.,

a creative penology approach. The undersigned's suggested ti)i: J¥f.'...

;1

, retation of the penal application of Article 315 to the present case may be ~_;''\,',

~· ,~i

ljust and equitable solution to the predicament of hundreds, if not, w:

:;~r1' .. ,

~ands of prisoners languishing in our detention and correctional facilities.

Makati City, 30 September 2013.

''ppine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 189.

for Petitioner e, Vicrucis Bldg. ue, 2200 Olongapo City

,'ii:'' ·'icltor General 1~fthe Solicitor General

, 11"cirsolo Street, Legaspi Village

'.¥~ti City

ident, Philippine Judges Association

flr.,Villareal Bldg. Ma.Orosa St., Malate, Manila

.,. ''.Senate President e of the Philippines Bldg., Financial Center

'· Blvd., Pasay City ,,,

e of Representatives 'tution Hills, Qµezon City

DEAN SEDFREY M. CANDELARIA Amicus Curiae

Ateneo de Manila University - School of Law 20 Rockwell Drive, Rockwell Center,

Makati City Telephone/Fax No. 8994373

PTR No. 1940001; Jan. 2, 2013, Sta. Rosa City IBP Receipt 913839; Jan. 2, 2013; Rizal Roll of Attorneys 33376 April 26, 1985

MCLE Exemption No. IV-000064, May 16, 2012

3482

iRY RECEIPT 003483

13

=-=-· 003488 IDB t r 81'1'1'11.111 r ...

ase of inquiry ~--·•11&1 ,20 rfilference in case of inquiry 3 .,,,.,... '

s t@rf'f'eller: .•• ·

rRY RECE1P-r{)034 89

of inquiry

REGISTRY RECEIPT 0 0 3 4 8 5

se of inquiry

,;ter/Teller

14

EXPLANATION FOR SERVICE BY REGISTERED MAIL

> undersigned was unable to personally serve copies of the above

··Comment and was constrained to serve the same by registered mail

(~the numerous parties to be served in different locations and the lack

'al time and manpower to do so.

DEAN SEDFREY M. CANDELARIA

\