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  • " ' H! II (PER INSTRUCTION) --- ----- --- - - ------- .. - ---- -- - --~----------------

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




    SUPRf:Mlll COURT .-..,.. O":'-ICE OF THE CLERK OF COU"' ~Jf. N BANC


    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?


    ; 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).

    1 lev. 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."'


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


    '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

  • 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.'


    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


    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