I)

ORIGINAL ·"1'r

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rmctt1v1m EN BANC

SEP 2 6 2013 liY: <f;~

Petitioner, TIME: 3 r iM9 f JV\

- versus G.R. NO. 180016

OPLE OF THE PHILIPPINES, Respondent.

MEMORANDUM

The SENATE PRESIDENT, through the Office of the Senate Legal

. unsel, in compliance with the Resolution of the Honorable Court dated

July 2013 inviting the Senate President as a friend of the Court to '11rs:

ve his views on the issues and questions stated in the said Resolution, } spectfully files this Memorandum:

ISSUES

I

WHETHER OR NOT THE PENALTY IMPOSED ON

PETITIONER CORPUZ UNDER ARTICLE 315 OF THE

REVISED PENAL CODE SHOULD BE MODIFIED BY

CONSIDERING THE PRESENT VALUE OF THE THING

SUBJECT OF HIS OFFENSE ADJUSTED TO 1932 PRICES,

CONSIDERING THAT THE LEGISLATURE DECIDED THE

AMOUNTS SUBJECT TO THESE PENALTIES IN 1932

II

WHETHER OR NOT A PORTION OF ARTICLE 315 THAT

IMPOSES A MAXIMUM PENALTY BASED ON THE AMOUNT

ii .:·i·'·I

ORIGJN/.U.

EN BANC SEP 2 6 2013

liY: f;/jW TIME:-: ----"'3~r :::::.:.t,&.:.-=-:,f=-/V\_,,__

Petitioner,

- versus G.R. NO. 180016

. OPLE OF THE PHILIPPINES, Respondent.

MEMORANDUM

The SENATE PRESIDENT, through the Office of the Senate Legal

ounsel, in compliance with the Resolution of the Honorable Court dated

6 July 2013 inviting the Senate President as a friend of the Court to I,

i'Ve his views on the issues and questions stated in the said Resolution,

spectfully files this Memorandum:

ISSUES

I

WHETHER OR NOT THE PENALTY IMPOSED ON

PETITIONER CORPUZ UNDER ARTICLE 315 OF THE

REVISED PENAL CODE SHOULD BE MODIFIED BY

CONSIDERING THE PRESENT VALUE OF THE THING

SUBJECT OF HIS OFFENSE ADJUSTED TO 1932 PRICES,

CONSIDERING THAT THE LEGISLATURE DECIDED THE

AMOUNTS SUBJECT TO THESE PENALTIES IN 1932

II

WHETHER OR NOT A PORTION OF ARTICLE 315 THAT

IMPOSES A MAXIMUM PENALTY BASED ON THE AMOUNT

I . . ,

2

OF THE FRAUD EXCEEDING P220,000 SHOULD BE

DECLARED UNCONSTITUTIONAL AND VOID FOR BEING

DISPROPORTIONATE AND EXCESSIVELY HARSH IN VIEW

OF THE DECLINE OF THE VALUE OF MONEY SINCE 1932

III

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?

IV

DO THE MODE AND DURATION OF THE PENALTY UNDER

ARTICLE 315 OF THE REVISED PENAL CODE VIOLATE

THE EQUAL PROTECTION AND/ OR UNUSUAL

PUNISHMENT CLAUSES OF THE CONSTITUTION?

ARGUMENTS

I

THE PENALTY IMPOSED UPON PETITIONER CORPUZ

SHOULD NOT BE MODIFIED BY THE HONORABLE COURT

When the law is clear and unequivocal, as in the present case of

);. at portion of Article 315 of the Revised Penal Code, it should be applied

hct persons and entities who are required to act in a certain or specific

y under the same, including, with all due. respect, the Honorable

urt, should not take liberties with the mandate of the law, by

pdifying the same by considering the present value of the thing subject

.'ilie offense adjusted to 1932 prices, lest it be accused of engaging in

icial legislation.

Article 315 of the Revised Penal Code is too explicit as to leave any

. m for its interpretation or construction and susceptible only to the

pplication of the basic statutory construction rule of verba legis.

3

In the case of Philippine Amusement and Gaming Corporation

Phil. Gaming Jurisdiction, Inc. et al., 1 the Honorable Court stated:

"The plain meaning rule or verba legis, derived from the maxim index animi semo est rests on the valid presumption that the words employed by the legislature in a statute correctly expresses its intention or will, and preclude the court from construing it differently. For the legislature is presumed to know the meaning of the words, to have used them advisedly, and to have expressed the intent to use of such words as are found in the statute. Verba legis non est recedendum. From the words of a statute there should be no departure."

This Honorable Court has time and again emphasized that it must

e presumed that the law says what it means and means what it says.2

When the words are unambiguous then judicial inquiry is complete .

.. either the courts nor any agency of government can add or subtract to

. ··.hat already is stated. 3 What is left to be done is to apply the law and

not improve upon it.4

Even if the law is considered to be harsh, there is no other choice

but to apply the same. Dura lex sed lex. The recourse is to amend the

•'law by the enactment of appropriate legislation. Additionally, the

Honorable Court may submit to the Chief Executive, through the

Department of Justice a recommendation for executive clemency

pursuant to the second paragraph of Article 5 of the Revised Penal Code

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

G.R. No. 177333, April 24, 2009. Insular Bank qfAsia and America Employees Union v. Inciong, 132 SCRA 663, 673 ( 1984). Insular Lumber Co. v. Court of Appeals, I 04 SCRA 710, 719 ( 1981 ). Pavelic & Le Flore v. Marvel Entertainment Group. Div. of Cadence Industries Cmp., 493 U.S. 20 (1989).

4

This submission would be in accord with the ruling of the onorable Court in the recent case of Romarico J. Mendoza v. People

/f the Philippines. s

,' Finally, it should be stated that it would be difficult and extremely ''peculative for the Honorable Court to try to determine the value of the Philippine

eso today as compared to its value when the Revised Penal Code was enacted in . .932 in order to apply said infonnation for the modification of the penalty in the 'nstant suit.

II

THAT PORTION OF ARTICLE 315 THAT IMPOSES A

MAXIMUM PENALTY BASED ON THE AMOUNT OF FRAUD

EXCEEDING P22,000 IS NOT UNCONSTITUTIONAL NOR

DISPROPORTIONATE TO THE PRESENT VALUE TO THE

PHILIPPINE PESO NOR EXCESSIVELY HARSH

Similar issues on the constitutionality of penalties have been presented before this Honorable Court and it has consistently held that enalties such as these are not unconstitutional.

, In the case of Feliciano Agbanlog v. People of the Philippines, et al.,6 the petitioner questioned as oppressive and unconstitutional the penalty imposed ~n him - that of eleven years and one day of prision mayor, as minimum, to ixteen years, five months and eleven days of reclusion temporal, as maximum. He

argued that considering the value of the peso in 1932 when the Revised Penal Code was enacted and the value of the peso today, the penalty for malversation of P21,000.00 should only be an imprisonment of one or two years.

In denying his Petition, this Honorable Court ruled as follows:

"Assuming arguendo that inflation has in effect made more severe the penalty for malversing P21,000.00, the remedy cannot come from this Court but from Congress. The Court can intervene and strike down a penalty as cruel, degrading or inhuman only when it has become so flagrantly oppressive and so wholly disproportionate to the nature of the offense as to shock the moral senses. (People v. Dionisio, 22 SCRA 1299 [1968]; People v. Estoista, 93 Phil. 647 [1953]; US. v. Borromeo, 23 Phil. 279 [ 1912]). Considering that malversation of public funds by a public officer is a betrayal of the public trust, we are not prepared to say that the penalty imposed on petitioner is so disproportionate to the crime committed as to shock the moral sense."

.'G.R. No. 183891. October 19, 2011.

.'o.R. No. I 05907. May 24, 1993.

5

Further, in the case of Jovencio Lim and Teresita Lim v. the People of e Philippines, et al., 7 the petitioners questioned the constitutionality of PD 818, ecree which amended Article 315 of the Revised Penal Code, by increasing the

'dalties for estafa, for being violative of the provision against cruel, degrading or .·. uman punishment enshrined under the Constitution. The petitioners alleged ':'t their bounching check in the amount of P365,000 could make them liable for plus ion perpetua or 30 years of imprisonment.

In dismissing the petition, the Supreme Court held that:

"Settled is the rule that a penalty of fine or imprisonment, when authorized by a statute, is not cruel or degrading unless it is flagrantly oppressive and wholly disproportionate to the nature of the offense as to shock the moral sense of the community. While PD 818 increased the imposable penalties for estafa committed under Article 315, par. 2 ( d) of the Revised Penal Code, it did not increase the amounts corresponding to the said new penalties. The increase in the penalty, however, far from being cruel and degrading, was motivated by a laudable purpose, namely, to avert the proliferation of cstafa cases committed by means of bouncing checks which undermines the country's commercial and economic growth."

Although the above-mentioned case involved a different portion of Article f5 of the Revised Penal Code which was amended by PD 818, it is submitted that e same principle should apply in this case which likewise involves Article 315 of " e Revised Penal Code and that the same conclusion should be reached, i.e., that ~.penalty is not unconstitutional nor is the penalty imposed disproportionate to ·~nature of the offense nor is it excessively harsh.

.... It is settled that it takes more than merely being harsh, excessive, out of _r,bportion, or severe for a penalty to be obnoxious to the Constitution as it may be hat it was prescribed to prevent or discourage the proliferation of crimes that are pecially hurtful to the public interest. 8

.. · Finally, it should be mentioned that in decided cases, the Honorable Court .. r ...

·~s declared the following penalties imposed as not being unconstitutional despite .h~ perceptions that they were disproportionate to the crime committed and/or the 'Jinalty excessively harsh: ':'11' '!ct'

a) lite imprisonment for the sale of five pesos worth of marijuana in the case of People of the Philippines v. Michael Alejandro;9

b) the penalty of six months imprisonment and a fine of P2,000.00 for profiteering in the case of People v. dela Cruz; 10

c) the penalty of one month imprisonment due to gambling in the case of People v. Dionisio; 11

d) the penalty of P5,000 for profiteering in the case of the sale of a can of milk for P2.20 when the selling price for it was Pl .80 in the case of People v. Tiu Ua; 12 and

j:R. No. 149276. September 27, 2002. eople of the Philippines v. Alejandro Mariano, G.R. No. 94644, August 17, 1993.

9;R. No. 94644, August 17, 1993. 97Phil. 906. '22 SCRA 1299. '96Phil 738, 741.

6

e) reclusion temporal maximum to reclusion perpetua for simple illegal possession of firearms in the case of Robin Carino Padilla v. Court of Appeals. 13

III

THE POWER OF JUDICIAL REVIEW SHOULD BE

EXERCISED ONLY IN ACTUAL CASES CALLING FOR THE

EXERCISE OF JUDICIAL POWER, WHERE THE

PETITIONER HAS A PERSONAL AND SUBSTANTIAL

INTEREST IN THE CASE, WHERE THE QUESTION OF

CONSITUTIONALITY IS RAISED AT THE EARLIEST

POSSIBLE TIME AND WHERE THE ISSUE OF

CONSTITUTIONALITY IS THE VERY LIS MOTA OF THE CASE

vu The power of judicial review has been discussed time and again by his Honorable Court in as early as 1936, in the case of Angara v. iectoral Commission.14 In decided cases, the latest of which include 'awyers Against Monopoly, et al. v. the Secretary of the Budget and anagement, et al.IS and Francisco I. Chavez v. Judicial and Bar ouncil, et al., I6 the Honorable Court already established the 'ferequisities for judicial review, to wit: (1) an actual case or controversy ~[Hing for the exercise of judicial power; (2) the person challenging the act must have 'standing' to challenge; he must have a personal and substantial interest in 'h~ case such that he has sustained, or will sustain, direct injury as a result of its

orcement; (3) the question of constitutionality must be raised at the earliest p,,p~sible opportunity; and ( 4) the issue of constitutionality must be the very lis »iota of the case.

'·'"•:':

The most extensive discussion of the power of judicial review was made by e Honorable Court in the case of Ernesto B. Francisco, Jr., et al. v. The House

'(,Representatives, et al. 17 In the said case, it was stated:

It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections, this Court held:

... It is a well-established rule that a court should not pass upon a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the record also presents some other ground upon which the court may rest

11,G.R. No. 121917. March 12, 1997. 1•4 63 Phil. 139 ( 1936).

1 .~ G.R. No. I 64987, April 24, 20 I 2. i6 G.R. No. 202242. July 17, 2012. 17 · G.R. No. 160261. November I 0, 2003.

\ ,i

7

its judgment, that course will be adopted and the constitutional question will be le.ft.for consideration until a case arises in which a decision upon such question will be unavoidable. [Emphasis and italics supplied]

The same principle was applied in Luz Farms v. Secretary of Agrarian Reform, where this Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit:

It has been established that this Court will assume jurisdiction over a constitutional question only if it is shown that the essential requisites of a judicial inquiry into such a question are first sati.~fied. Thus, there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial determination, the constitutional question must have been opportunely raised by the proper party, and the resolution of the question is unavoidably necessary to the decision of the case itse(f [Emphasis supplied]

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the very lis mo ta or crux of the controversy."

In the case at hand, the Petition did not even raise any question on the nstitutionality of that portion of Article 315 of the Revised Penal Code. It is

!so submitted that the resolution of the issue on the constitutionality of that ortion of Article 315 of the Revised Penal Code is not unavoidably necessary to ake the decision of the present case, i.e., it is not the very !is mot a of the case. It

ppearing, therefore, that two (2) ~f the prerequisites of judicial review are not 'resent, the Honorable Court should exercise judicial restraint and decline to rule ''nthe constitutionality of that portion of Article 315 of the Revised Penal Code. · his is in line with the ruling in the case of Philippine Veterans Bank v. Hon. 'ourt of Appeals, et al. 18 as follows:

We decline to rule on the issue of constitutionality as all the requisites for the exercise of judicial review are not present herein. Specifically, the question of constitutionality will not be

· passed upon by the Court unless, at the first opportunity, it is properly raised and presented in an appropriate case, adequately argued, and is necessary to a determination of the case, particularly where the issue of constitutionality is the very tis mota presented. In herein case, the constitutional question was raised belatedly by PVB only in its memorandum filed before this Court.

IV

THE MODE AND DURATION OF THE PENALTY UNDER

ARTICLE 315 OF THE REVISED PENAL CODE DO NOT

1s G · .· .. R. No. 132561. June 30, 2005.

8

VIOLATE EITHER THE EQUAL PROTECTION CLAUSE

AND/ OR THE UNUSUAL PUNISHMENT CLAUSE OF THE

CONSTITUTION.

The pertinent portion of Article 315 of the Revised Penal Code respecting , .penalty of estafa where the amount of the fraud is over P22,000 provides for a alty of imprisonment ofprision correccional in its maximum period to prision

1

yor in its maximum period, adding one year for each additional 10,000 pesos trthe total penalty of which should not exceed twenty (20) years. Thus, it is parent that the penalty imposable is imprisonment.

In the early case of People of the Philippines v. Rosauro Dionisio, 19 the .. norable Court already ruled that neither fines nor imprisonment constitute cruel "unusual punishment to wit:

"Neither fines nor imprisonment constitute in themselves cruel and unusual punishment, for the constitutional stricture has been interpreted as referring to penalties that are inhuman and barbarous, or shocking to the conscience (Weems vs. US., 217 U.S. 349) and fines or imprisonment are definitely not in this category.

Nor does mere severity constitute cruel and unusual punishment. In People vs. Estoista, 93 Phil. 655, this Court ruled:

"It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C. J. S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive,' 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community.' (Idem.) 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 unsual, barbarous, or excessive to the extent of being shocking to public conscience. It is of interest to note that the validity on constitutional grounds of the Act in question was contested neither at the trial nor in the elaborate printed brief for the appellant; it was raised for the first time in the course of the oral argument in the Court of Appeals. It is also noteworthy, as possible gauge of popular and judicial reaction the duration of the imprisonment stipulated in the statute, that some members of the court at first expressed opposition to any recommendation for executive clemency for the appellant, believing that he deserved imprisonment within the prescribed range."

In the case of Jovencio Lim and Teresita Lim v. the People of the Philippines, et al. 20 citing the case of People v. Tongko, 21 it was stated that: -~ ', ' '

"This Court held that the prohibition against cruel and unusual punishment is generally aimed at the form or character of

90.R. No. L-25513. March 27, 1968. 0 G.R. No. 149276. September 27, 2002 . . 290 SCRA 597 ( 1998).

'I !

9

the punishment rather than its severity in respect of its duration or amount, and applies to punishments which never existed in America or which public sentiment regards as cruel or obsolete. This refers, for instance, to those inflicted at the whipping post or in the pillory, to burning at the stake, breaking on the wheel, disemboweling and the like. The fact that the penalty is severe provides insufficient basis to declare a law unconstitutional and does not, by that circumstance alone, make it cruel and inhuman."

It is well-settled that as far as the constitutional prohibition goes, it is not so ch the extent as the nature of the punishment that determines whether it is, or is

t; cruel and unsual and that sentences of imprisonment, though perceived to be rsh, are not cruel or unusual if within statutory limits. 22

'·. In view of the foregoing, it is clear that the mode and duration of '~ penalty under Article 315 of the Revised Penal Code, imposing as it '"es the penalty of imprisonment, do not violate the unusual 1

nishment clause of the Constitution.

On whether or not the mode and duration of the penalty under rticle 315 violates the equal protection of the laws clause, it is

1

ubmitted that they do not. \:'":

,, The equal protection clause means that no person or class of persons hall be deprived of the same protection of laws enjoyed by other persons or '.~her classes in the same place in like circumstances. Thus, the guarantee of he equal protection of laws is not violated if there is a reasonable Jassification. For a classification to be reasonable, it must be shown that (I)

}rests on substantial distinctions; (2) it is germane to the purpose of the law; ';3) it is not limited to existing conditions only; and (4) it applies equally to '.. 23 !members of the same class.

The penalty under Article 315 of the Revised Penal Code does not )olate the equal protection of the laws clause because it provides for a ,,,~asonable classification for the penalty to be imposed, i.e., based on the iimount of the fraud committed. The increases in the penalty to be imposed 'as the amount of fraud increases is germane to the purpose of the law which x~. to place higher burdens of liability for persons who defraud others in ;increasingly higher amounts. The classification of the penalty is also not limited to existing conditions because it applies equally to those who committed the crime of estafa soon after 1932 when the law was passed, at the present time and even for future commissions of the crime. Finally, the enalty under Article 315 applies equally to all persons or members of the ~me class. All in all, the mode and duration of penalty under Article 315 asses the test of the equal protection of the laws clause.

,~~i'.i~r~', 21 ..

:~l~i~<,,, ·Robin Carino Padilla v. Court of Appeals, et al., G.R. No. 121917, March 12, 1997 citing Baylosis v. Chavez, 202 SCRA 405, 417. ),~Commissioner <?[Customs, et al. v. Hypermix Feeds Corporation, G.R. No. 179579, February

2012.

I

10

RESPECTFULLY SUBMITTED.

Pasay City for Manila, 26 September 2013.

Office of the Senate Legal Counsel 4 / F Senate Building

GSIS Headquarters Complex Financial Center, Pasay City

By:

L· //~~ -~ MARIA VALENTINA S. CRUZ

Senate Legal Counsel Roll No. 35899

IBP No. Lifetime No. 03368, Manila IV PTR No. 3158926, 1/9/ 13, Pasay City

MCLE Compliance No. III - 0005742/ 10-28-09

REGISTRY RECEIPT

tty. Nini D. Cruz (reg) ounsel for Petitioner

)'.,<\,,,

ezzanine, Viacrucis Bldg . . ~"''' j

.'ial Avenue, 2200 Olongapo City

.... he Solicitor General (reg) 134 Amorsolo St., Legaspi Village 229 Makati City

AEGIS TAY RECEIPT

EXPLANATION FOR NON-PERSONAL SERVICE (Pursuant to Section 13, Rule 13

of the 1997 Rules of Civil Procedure)

Mode of service by registered mail with return card on 26 ::September 2013 instead of personal delivery was resorted due to time iand distance constraints.

L· f'~ 1--·y MARIA VALENTINA S. CRUZ

REPUBLIC OF THE PHILIPPINES SUPREl\!lE COURT AH 8: 23

Manila

en bane

CORPUZ,

Petitioner,

-versus~·

OPLE OF THE PHILIPPINES.

SUPREM& COtflt'r RT OFFICE OF THE Cl.EltK Of COlJ

EN BANC RECEIVED

G.R. No. 180016

~·· ~ Respondent. . .. ·e:-\,;:;.111', ........... ______________________________ , _____________________________ . _______________ x

QJl\1MENT

" .. ~omment in compliance with the Honorable Court's Resolution dated 16 ~,~ly 2013, and states that:

~·~~ ,'

Preliminary Statement

Accused Lito Corpuz is just one of thousands of prisoners in our

'yercrcwdedjails. Like many of his fellow prisoners, he is a member of .~·'eworking class; and he is in jail for committing because he committed a

'me against property. l_,ike most of those who end up in prison, he is a 'ember of the working class.

Because he was convicted of estafa, M.r. Coqmz's penalty was mputed based on the first part of Article 315 of the Revised Penal Code:

The penalty of prision correccional in its maximum period to prision Jn(~yor in its minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed 22,000 pesos~ and if such amount exceeds tbc latter sum, the pcnalty ... shall be imposed in its maximum period, adding one year for each additional 10,000 pesos; but the total penalty '\vhich may be imposed shall not exceed twenty ycars .... [T]he penal.ty shall be ternJed prision mayor or reclusion lempora( as the case may he [emphasis added].

'\0 ,Q~ 4\

,,ii

.''Cfor swindling the amount of 98,000 pesos, Corpuz was sentenced by ';al court to four years and two months of prision correccional as i um, to 14 years and 8 months of reclusio11 temporal in its 'mum period, as maximum. On appeal, that sentence was increased ~·Court of Appeals to 15 years as maximum. Unless he qualifies for . granted parole, this means that Corpuz will not be released until he

.'erved his maximum sentence of 15 years.

;, Article 315 has not been ainended since the Revised Penal Code was ted almost a century ago. The amount of 10,000 pesos for each year of 'tional imprisomnent is of 1932 vintage. While it probably made sense e time to peg a year's imprisonment at 10,000 pesos, to do so today is ary, anti-poor, and will lead to absurd results.

:. The incremental penalty rule provides for an additional year of risonment for every 10,000 pesos above 22,000 pesos, but not to exceed

'', ~ \ \

ears. This means that a person who commits estafa in an amount eeding 142,000 pesos will receive the same penalty as someone who mits estafa involving millions or even hundreds of millions of pesos.

s defeats the very purpose of the nlle.

Under the incremental penalty rule, a person like the accused Corpuz commits estafa in the amount of 98,000 pesos will receive a maximum

. alty of 15 years-just a shade less than about the same the maximum ialty this Court imposed in PeoP.le v. Duavis, G.R. No. 190861, 7 cember 2011, on a person who committed e law imposes on homicide

'th when neither aggravating nor mitigating circumstances are present-14 ars, 8 months and ] day of reclusion temporal.

In a recent homicide case, there being no modifying circumstances, is Court imposed the indeterminate sentence of 8 years and 1 day of

fision mayor as minimum, to 14 years, 8 months and 1 day of reclusion ,,,.,

·~mporal, as maximum. Peogle v. Duavis, G.R. No. 190861, December 7, 011.

Under the incremental penalty rule, a person who commits estafa in 1e amount of 32,000 pesos or more will receive a higher maximum penalty : between 9-20 years- than one who commits :frustrated homicide (8 years :d I day in Adame v. Court of ApP.eals, G.R. No. 139830, 21 November 002).

· e incremental penalty rule also leads to prolonged sentences and tcrowding of jails. Since the value of things has deteriorated

b.fuitly since 1932,judges today are imposing longer penalties for ';i:i;the same criminal act. The incremental penalty rule is the reason :·An.any of those convicted of crimes against property languish in jail '·i~ng.

•r·

Since many of those in jail are poor, the ones who bear the brunt of · remental penalty rule are the poor.

It is well settled that a court may consider the spirit and reason of a tci/and even resort to extrinsic aids, when its literal application would 'o absurdity, contradiction, impossibility, injustice, or would defeat the ... urpose of the law makers [People v. Rivera, G.R. No. L-38215, 22 mber 193; Republic v. Court of Am1eals, 359 Phil. 530 (1998); Ursua \irt of A meals, G.R. No. 112170, April 10, 1996; and many other ].

f Literal application of the incremental penalty nlle, as shown above, 1

to situations that are absurd and unjust, which defeat the very purpose e law. This Court, therefore, can go outside the four corners of the law

i: In the alternative, undersigned counsel submits that the incremental ~lty nde is unconstitutional because it violates the equal protection

·' se and constitutes cruel and unusual punishment.

I. Courts Not Bound by Absurdity

In a long line of cases, this Comt has disregarded the literal meaning of a statute, considered its spirit and reason, and even used extrinsic aids to give it meaning when its literal application would be absurd or unjust:

• Ursua v. Court of Ap.P.eals and PeoRle of the Philip.P.ines, G.R. No. 112170, April I 0, 1996:

.... The court may consider the spirit and reason of the statute, where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the lawmakers [citing Gregorio,

F1mdamentals of Criminal Law Review, 1985 ed., p. 9; and Peo12le v. Manantan, G.R. No. L-14129, 31July1962].

xx x

While the act of petitioner may be covered by other provisions of law, such does not constitute an offense within the concept of C.A. No. 142 .... The confusion and fraud in business transactions which the anti-alias law and its related statutes seek to prevent are not present here as the circumstances are peculiar and distinct from those contemplated by the legislature in enacting C.A. No. 142 as amended. There exists a valid presumption that undesirable consequences were never intended by a legislative measure and that a construction of which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible, wrongful, evil and injurious consequences. People v. Purisima, G.R. L-42050-66, 28 November 1978, 86 SCRA 542. Moreover, as C.A. No. 142 is a penal statute, it should be construed strictly against the State and in favor of the accused. Peon le v. UY. Jui Pio, 102 Phil. 679 (1957) .... hideed, our mind cannot rest easy on the proposition that petitioner should be convicted on a law that does not clearly penalize the act done by him.

• People v. Rivera, G.R. No. L-38215, 22 December 1933, en bane:

... It seems the more reasonable and sensible interpretation to limit article 363 of the Revised Penal Code to acts of "planting" evidence and the like, which do not in themselves constitute false prosecutions but tend directly to cause false prosecutions.

It is a well settled rule that statutes should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion. (citing Lau Ow Bew vs. United States, 144 U.S., 47, 59; 36 Law. ed., 340, 344.)

• Arna.tan v. Judge Aujerio, A.M. No. RTJ-93-956, 27 September 1995:

However, the law is not entirely bereft of solutions in such cases. In instances where a literal application of a provision of law would lead to injustice or to a result so directly in opposition with the dictates of logic and everyday common sense as to be unconscionable, the Civil Code admonishes judges to take principles of right and justice at heart. In case of doubt the intent is to promote right and justice. Fiat justice ruat coelum. Stated differently, when a provision of law is silent or ambiguous, judges ought to invoke a solution responsive to the vehement urge of conscience.

• Solid Homes. Inc. v. SP.ouses Ancheta K. Tan, G.R. No. 145156-57, 29 July 2005:

In many instances, this Court has refused to apply the literal import of a particular provision of law when to do so would lead to unjust, unfair and absurd results. After all, it is the function of courts to see to it that justice is dispensed, fairness is observed and absurdity prevented.

xxx

[S]tatutes should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion. (Emphasis supplied.)

Were we to follow the letter of Article 1385, we will in effect be paving the way to an absurd situation whereby subdivision developers who have reneged on their contractual and legal obligation to provide utility systems and facilities for the use of subdivision lot owners may themselves profit from their very own wrongs and shortcomings ....

• Commissioner of Internal Revenue v. SM Prime Holding.§l Inc.~ G.R. No. 183505, 26 February 2010 (Del Castillo, J):

When ... the application of the law would lead to absurdity or injustice, legislative history is all important. In such cases, courts may take judicial notice of the origin and history of the law [citing United States v. De Guzman, 30 Phil. 416, 419-420 (1915)], the deliberations during the enactment, [citing PeoQle v. Degamo, 450 Phil. 159, 179

(2003)], as well as prior laws on the same subject matter [citing Celestial Nickel Mining Exploration Cor12. v. Macroasia

Corn.:.l..G.R. Nos. 169080, 172936, 176226, & 176319, 19 December 2007]. to ascertain the true intent or spirit of the law.

• Secretary of Justice v. Konig!!, G.R. No. 166199, 24 April 2009:

The general rule in construing words and phrases used in a statute is that in the absence of legislative intent to the contrary, they should be given their plain, ordinary, and common usage meaning [citations omitted]. However, a literal ~pretation of a statute is to be rejected if it will onerate unjustlv., lead to absurd results, or contract the evident meaning of the statute taken as a whole [citations omitted]. After all, statutes should receive a sensible construction, such as will give effect to the legislative intention and so as to avoid an unjust or an absurd conclusion. Indeed, courts are not to give words meanings that would lead to absurd or unreasonable conseguences. [Citations omitted]

xxx Indubitably, Section 37(a)(4) should be given a

reasonable interpretation, not one which defeats the very purpose for which the law was passed. This Court has, in many cases involving the construction of statutes, always cautioned against narrowly interpreting a statute as to defeat the purpose of the legislator and stressed that it is of the essence of judicial duty to construe statutes so as to avoid such a deplorable result of injustice or absurdity, and tliat therefore a literal interpretation is to be rejected if it would be unjust or lead to

absurd results. [Citations omitted]

This case is no different from the cases cited above and many others. As earlier pointed out, a literal application of the incremental penalty rule will result in the following absurd and unjust situations:

a. The incremental penalty rule provides for an additional year of imprisonment for every 10,000 pesos above 22,000 pesos, but not to exceed 20 years. This means that a person who commits estafa in an amount exceeding 142,000 pesos will receive the same penalty as someone who commits estafa involving millions or even hundreds of millions of pesos. This defeats the very purpose of the rule.

b. Under the incremental penalty nlle, a person like the accused Corpuz who commits estafa in the amount of 98,000 pesos will receive a maximum penalty of 15 years-a shade less than the penalty this Court recently imposed in Peogle v. Duavis, supra, for just about the same penalty the law imposes on homicide when neither aggravating nor mitigating circumstances are present-14 years, 8 months, and 1 day of reclusion temporal ..

Under the incremental penalty rule, a person who commits estafa in the amount of 32,000 pesos or more will receive a higher maximmn penalty--between (9-204 years-- and 2 months of prision correccional to ten years of prision may01) than one who commits frustrated homicide or serious physicial injuries (8 years and 1 day in Adame v. Court of Ap.Qeals, G.R. No. 139830, 21November2002) ..

Judicial notice of origin and history of the Revised Penal Code to ascertain the tn1e intent or s12irit of the law. This Court, as early as United States v. De Guzman, 30 Phil. 416, 419-420 (1915), took judicial notice of the origin and history of the Revised Penal Code. Undersigned counsel submits that this Court should do the same here, by aclo1owledging that the framers of the Revised Penal Code, when they pegged the amount of 10,000 per year of imprisonment, based that figure on the value of the peso at the time.

Moreover, we can safely conclude that when they pegged the amount at 10,000 pesos, they never intended that that amount would remain the same for the next 81 years.

Since it would be unreasonable for courts of today to apply the 1932 rates, in the absence of Congressional action the Court has no choice but to take action. Articles 9 and 10 of the Civil Code support this conclusion:

Article 9. No _judge or court shall decline to render _judgment by reason of the silence, obscurity or insufficiency of the laws.

Article 10. In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail.

I I'

Undersigned counsel submits that in interpreting the incremental penalty rule, the Court may consider the following options:

a. Increase the amount from 10,000 pesos a year to One Hundred Thousand Pesos a year; or

b. Adopt a 100 pesos to 1 peso ratio as suggested in the 16 July 2013 resolution in this case:

The penalty that the CA imposed on Corpuz presents the following conflicting views:

First, the CA was in error in imposing the penalty of from 4 years and 2 months as minimum to 15 years as maximum. It should have taken into account the fact that the value of the peso has enormously deteriorated since 1932 when the legislature pegged the penalty for estafa on the prevailing value of money at that time. Figures from the National Statistics Office show that a peso in 1957 (when the first official statistics were taken) is equivalent to P95.83 today. It may be assumed from this, that the Pl in 1932 cannot have a value lower than PlOO today. Since Corpuz may be deemed to have defrauded Tangcoy of the equivalent of only P980 based on the value that the legislature contemplated in 1932, rather than the P98,000 charged in the infonnation, he should be meted out the penalty of only 4 months and 1 day, as minimum, to 2 years and 4 months, as maximum, a probationable penalty.

Not judicial legislation but statutory, intemretation. The doctrine of judicial legislation does not apply where the literal application of a statute would be absurd or unjust. This is apparent from the numerous cases where this Court disregarded the literal meaning of a law and found its meaning beyond the four corners of the statute.

This is, therefore, not a case of judicial legislation but ordinary statutory interpretation.

II. The Incremental Penalty Rule

Violates tbe Ec1ual Protection Clause

In PeQQle v. CaY.at, G.R. No. L-45987, 5 May 1939,, this Court held:

It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. And the classification, to be reasonable, (1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not be limited to existing conditions only; and ( 4) must apply equally to all members of the same class .

. . . Explaining the nature of the equal protection guarantee, the Court in Ichong v. Hernandez, G.R. No. L-7995, 31May1957, said:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either [by] the object to which it is directed or by [the] territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall witJ1in such class and those who do not.

Applying these principles to the case at hand, undersigned counsel submits that the incremental penalty rule violates the equal protection clause of the Constitution.

The equal protection clause prohibits legislative classifications that are unreasonable and discriminatory. For a classification to be reasonable, it must (1) rest on substantial distinctions, (2) be germane to the purposes of the law, (3) must not be limited to existing conditions only, and ( 4) must apply equally to all members of the same class. The incremental penalty clause embodied in Article 315 of the Revised Penal Code violates the equal protection provision of the Constitution.

Incremental penalty n1le violates egual P.rotection.The incremental penalty rule does not rest on substantial distinctions. It is not gennane to the purposes of the law. And it is limited to existing conditions at the time the law was promulgated in 1932-conditions that no longer apply in 2013.

Incremental Penalty Rule does not rest on substantial distinctions. The incremental penalty rule of 10,000 pesos per year of additional imprisonment but not more than 20 years made sense in 1932. It was a substantial distinction back then. But it no longer makes sense today.

The incremental penalty nile imposes a cap of 20 years. This means that a person who swindles another of more than 142,000 pesos will receive the same penalty as someone who steals millions or even hundreds of millions of pesos. The distinction simply makes no sense.

The atnount of 10,000 pesos makes no sense either. To be reasonable, that amount should be at least 5 to l 0 times higher. That way, even the unreasonableness of the ceiling discussed in the preceding paragraph will be addressed.

Incremental Penalty Rule no longg_gennane to the 12JllP-Oses of the law. The incremental penalty rule was devised so that those who commit estafa involving higher amounts are given a higher penalty. The incremental penalty ntle no longer achieves that purpose. Therefore, it is no longer gennane to the purposes of the the Revised Penal Code.

As observed above, the incremental penalty rule imposes the satne penalty on a person who commits estafa involving 142,000 pesos and one who commits estafa involving millions or hundreds of millions of pesos.

Obviously, it is no longer gennane to the purposes of the law. The failure to distinguish between estafa involving hundreds of thousands of pesos at1d estafa involving millions of pesos was not importat1t in 1932, because most if not all estafa cases then involved thousat1ds of pesos only. Nowadays where trat1sactions involving millions of pesos are c01nmon, that distinction is very importat1t. The failure of the law to make that distinction defeats its very purpose.

Not gennane to P.Urposes of Indetenninate Sentence Law either. This ~Court, in Peonle v. Ducosin, 59 Phil. 109 (1933), declared that the purpose of the Indeterminate Sentence Law is "to uplift and redeem .valuable human material, and prevent unnecessary and excessive ;'deprivation of personal liberty and economic usefulness." InPeoRle v. ::Simon, G.R. No. 93028, 29 July 1994, the Court elaborated further:

The Indetenninate Sentence Law is a legal and social measure of compassion, and should be liberally interpreted in

favor of the accused. The "minimum" sentence is merely a period at which, and not before, as a matter of grace and not of right, the prisoner may merely be allowed to serve the balance

of his sentence outside of his confinement. It does not constitute the totality of the penalty since thereafter he still has to continue serving the rest of his sentence under set conditions. That minimum is only the period when the convict's eligibility for parole may be considered. ln fact, his release on parole may readily be denied if he is found unworthy thereof, or his reincarceration may be ordered on legal grounds, even ifhe has served the minimum sentence.

·.· The incremental penalty rule runs contrary to the spirit and rationale of the Indeterminate Sentence Law. It is not gennane to the purposes to the ISL.

Incremental P-enal!v nile limited to existing conditions at the time the law was 12romulgated in 1932-conditions that no longer aim!y in 2013. The framers of the Revised Penal Code were acting within the framework of the economic conditions of their time. When they pegged each year of additional imprisonment at 10,000 pesos, they

· were basing that figure on the value of the peso in 1932. Surely they never intended that the amount of 10,000 per year of imprisonment would prevail for next 80 plus years.

The incremental penalty rule, in other words, was limited to existing conditions when the law was enacted. These conditions are no longer relevant in 2013.

Since the incremental penalty rule does not satisfy the requirements for reasonable statutory classifications, it violates the equal protection clause of the Constitution.

i J

III. The Incremental Penalty Rule Constitutes

Cruel and Unusual Punishment

Section 19(1) of the 1987 Constitution prohibits the imposition of 1 cn1el, degrading, or inhuman punishment.

While the ban on cruel and unusual punishments is "generally aimed • .. at the fonn or character of the punislunent rather than its severity in respect of duration or amount..," this Court has not ruled out its application to the latter:

The constitution directs that "Excessive fines shall not be i1nposed, nor cn1el and unusual punishment inflicted." The prohibition of cruel and unusual punishments is generally aimed at the form or character of the punishment rather than its severity in respect of duration or amount ....

However, there are respectable authorities holding that the inhibition applies as well to 1>unishments that although not cruel and unusual in nature, may be so severe as to fall within the fundamental restriction. These authorities explain, nevertheless, that to justify a court's declaration of conflict with the Constitution, the prison term must be so disproportionate to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances. And seldom has a sentence been declared to be cruel and unusual solely on account of its duration. (~P-le v. De la

~' G.R. No. L-5790, 17 April 1953, en bane].

Evolving standards of decencY.. In Echegara~ v. Executive Secretary_, G.R. No. 132601, 12 October 1990, this Court adopted the American view that "wllat is cruel and unusual is not fastened to tl1e obsolete but may acquire meaning as public opinion becomes enlightened by Jiu mane justice and must draw its meaning from the evolvillg stalldards of decency tl1at mark tile progress of a maturillg society. " Undersigned counsel submits that the incremental penalty rule violates prevailing standards of decency.

When the Revised Penal Code was enacted into law in 1932, the world was a very different place. Humanity had not yet experienced the horrors and atrocities of the Second WorJd War; the United

Nations had yet to be established; there was no Universal Declaration of Human Rights, no Geneva Convention, no Inten1ational Covenant on Civil and Political Rights and other inten1ational instruments that we have today. What was a "decent standard" has changed considerably since 1932. Practices that we consider human rights violations today were acceptable to society at that time.

While l 0,000 pesos for each year of additional imprisonment was acceptable in 1932, applying that amount today inevitably results in longer sentences for exactly the same criminal act. A diamond ring, for example, that cost 10,000 pesos in 1932 would probably cost at least 100,000 pesos in 2013. While a person convicted of swindling another of a diamond ring worth 10,000 in 1932 would receive a penalty of prision correccional in its minimum and medium periods. The same act committed in the same way in 2013 would 1nerit a maximum sentence of 15 years - the same sentence imposed on the accused in this case, Lito Corpuz.

By its very nature, therefore, the incremental penalty ntle leads to harsher sentences for exactly the same criminal act. The incremental penalty rule is the reason why many of those convicted of crimes against property languish in jail for so long.

Since many of those in jail are poor, the ones who bear the brunt of the incremental penalty n1le are the poor.

The incremental penalty rule is also shocking to the conscience because it makes the maximum penalties for estafa-a crime against property-much harsher and more severe than the penalties for homicide and other crimes against persons.

Under the incremental penalty rule a person (like the accused Corpuz) who commits estafa in the amount of 98,000 pesos will receive a maximum penalty of 15 years-just a shade less than the penalty this Court imposed on a person who committed homicide without any modifying circumstances in People v. Duavis, G.R. No. 190861, 7 December 2011: 14 years, 8 months and 1 day of reclusion temporal.

Under the incremental penalty nde, a person who commits estafa in the atnount of 32,000 pesos or more will receive a higher maximum penalty (9-20 years) than one who commits frustrated homicide (8 years and I day in Adame v. Court of Ap_neals, supra).

/ The disparities in penalties between crimes against property and "' crimes against persons are obsolete. While they were acceptable 81 : years ago, they are no longer acceptable today, since we place so . much value nowadays on the integrity and dignity of the person.

·· .• Surely a crime against persons such as homicide, frustrated homicide, or serious physical injuries should have a higher penalty than crimes

. , against property like estafa and theft.

· Section 19(1), Aiiicle III of the Constitution, moreover, should be ; read in conjunction with the Inten1ational Covenant on Civil and

.. , Political Rights, the h1ternational Covenant on Economic, Social and .' Cultural Rights, the International Convention on the Elimination of

All Fonns of Racial Discrimination, the Convention on the Elimination of All F onns of Discrimination against Women, the Convention on the Rights of the Child, and other international human rights that the Philippines has signed orand ratified. Under Section 2, Article II of the Constitution, these instnnnents -which are generally constitute generally accepted principles of interntional law-form part of the law of the land. Furthennore, under Section 21, Article VII, the treaties mentioned are transformed into domestic law by ratification or accession. [Pharmaceutical and Health Care Association v Health Secretarv., G. R. No. 173034, 9 October 2007].

Article 7 of the Inten1ational Covenant on Civil and Political Rights provides that "[n]o one shall be subjected to ... cruel, inhuman or degrading treatment or punishment." A similar provision can be found in Article 37 of the Convention on the Rights of the Child, supra, and in other instn1ments as well.

Article 7 of the International Covenant on Civil and Political Rights also provides that "The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their refonnation and social rehabilitation."

There is increasing literature on the harmful effects of long prison terms. Bonta and Gendreau, in James Bonta and Paul Gendreau, 'Reexamining the Cn1el and Unusual Punishment of Prison Life,' 14 (4) Law and Human Behavior 347 (1990), critically examine this literature.

The United States Federal Supreme Court has expanded the application of a similar constitutional provision prohibiting cn1el and unusual punishment, to the duration of a penalty, and not just its form. In Solem v Helm, 463 U.S. 277 (1983), the United States

'I ,, ,1

Federal Supreme Court held that life imprisonment with no parole for writing a check from a fictitious account, crune within the scope of the eighth runendment protection from cruel and unusual punislunent. The Court overturned the sentence in this case on the ground that it was 'cruel and unusual.' In the process, the Court nlled that three things must be done to decide whether a sentence is

. proportional to a specific crime:

1. Compare the nature ru1d gravity of the offense and the harslu1ess of the penalty,

2. Compare the sentences imposed on other criminals in the same jurisdiction, whether more serious crimes are subject to the same penalty or to less serious penalties, ru1d

3. Compare the sentences imposed for commission of the same crime in other jurisdictions.

Applying that test here, we will find that Article 315 of the Revised Penal Code places at risk of violation the constih1tional prohibition of cruel, inhumru1 or degrading punishment. It imposes an overly harsh penalty for estafa, a crime against property, especially when compared with the penalties for more serious crimes.

Respectfully submitted.

Manila, Philippines, 21 September 201 3.

FREE LEGAL ASSISTANCE GROUP (FLAG) c/o Deru1 Jose Mru1uel I. Diokno

By:

De La Salle University College of Law Br. Andrew Gonzalez Hall

De La Salle University 2401 Taft Avenue, Manila

Jose . . Diokno Supre1 Court Roll No. 35394

PTR No. 7703246B, 17 January 2013, Q.C. IBP Lifetime No. 00236, 02-09-95, Pasig City

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ini D. Cruz sel for Petitioner

ine, Viacnicis Bldg. · Avenue, 2200 Olongapo City

'Solicitor General ~e of the Solicitor General .Amorsolo St., Legaspi Village

.. Makati City

of Appeals G.R. CR no. 28983

.~~il · ·~fui Sedfrey M. Candelaria .t~heo de Manila University Jlege of Law QfRockwell Drive, Rockwell Center

''. ati City '·~·

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;'1Br. Ruperto P. Alonzo with ,.''fui Raul V. Fabella ,~an Emmanuel S. De Dios 1'friversity of the Philippines ~hool of Economics

'!iiman, Quezon City '·~~ ''" "1~:"

Jdge Franklin T. Monteverde '

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esident ~~ilippine Judges Association ~~,·!;,

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on. Senate President ~~nate of the Philippines GSIS Bldg., Financial Center '[()xas Blvd., 1300 Pasay City ~( :?~\·', ~'-' \~

Post 4367

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peaker of the House .,,.\ofRepresentatives \!''~tution Hills, Quezon City

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Exglanation

·Due to the continuous heavy rainfall and floods as well as time and lln.el constraints, this comment is being filed with the CouFt by _ered mail. For the same reasons, copies of this Comment are being a on the parties and/or their counsels by registered mail.

,,,l

\ This Explanation is being submitted in line with the Rules of Court, ·ended.

~11 . Jose ~ell'Diokno

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