180016 osg supplemental comment

8/12/2019 180016 Osg Supplemental Comment

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JSUP E \I II CfilVEDBY:REPUBLIC OF THE PHILIPPINES . . . . . . : ; ; - ~ - 1 - 1 1 - ~ - -

SUPREME COURT 2 13 SEP IMANILA M 8: 4

EN BANCLITO CORPUZ Petitioner,

- versus - G R No 180016

OF THE

Respondent.

Re: Resolution dated July 16, 2013

The Office of the Solicitor General, in compliance with theirective of this Honorable Court dated July 16, 2013, by way?fa Comment, 1 respectfully states:

N TURE OF THE PETITION

This is an appeal from the Court of Appeals Decision dated March 22, 2007, affirming with modification theJudgment dated July 30, 2004 of the Regional Trial Court,Branch 46, San Fernando City finding peitioner Lito Corpuz: guilty beyond reasonable doubt of the crime of estafa, as wellas the Resolution dated September 5, 2007, denying

petitioner s motion for reconsideration.

ST TEMENT OF THE C SE ND NTECEDENTS

In the July 16, 2013 Resolution, this Honorable Courtinvited the respective parties along with other amici curiae to1 Received by the OSG on July 29, 2013.


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Hdress the conflicting views stated therein by way of filing ahhiment as to the imposition of the penalty imposed for\vindling (estafa) under Article 315 of the Revised Penal Code.

COUNTER STATEMENT O FACTS

Sometime in 1990, Danilo Tangcoy met petitioner at the;dmiral Royale Casino in Olongapo City. Both were employedcollection agents of JBL Incorporated, a loan and financingdompany. Aside from being an agent, Tangcoy was also: ii.gaged in the business of buying and selling jewelry.

1:

On May 2, 1991, petitioner inquired from Tangcoy if head any jewelry for sale. At the time, Tangcoy had with himeveral pieces of jewelry which he bought in Thailand: 1) an8k diamond men's ring worth P45,000.00; 2) a 2-baht 22k

~ d i e s bracelet worth P12,000.00; 3) a 3-baht 22k men'sbracelets worth P25,000.00; and 4) a 2-baht 22k men'sbracelets worth Pl6,000.00. The total value of the jewelry was98,000.00. I

Petitioner told Tangcoy that he was interested to sell thejewelry. They agreed that petitioner will sell the jewelry oncommission within sixty (60) days. Upon the lapse of suchperiod, petitioner shall remit the sale proceeds to Tangcoy or

,return the jewelry, if unsold.. On July 5, 1991, after the lapse of the 60-day period,fTangcoy waited for petitioner to remit the sale proceeds orreturn the jewelry but petitioner failed to do so.

After constantly searching for petitioner for two 2)/months, Tangcoy finally located him. Petitioner promised to.pay for the jewelry but failed to do so.Petitioner was then charged before the Regional Trial.Court, Branch 75, Olongapo City with the crime of estafa, inan Information which reads:

hI


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That on or about the fifth 5th) day ofJuly, 1991, in the City of Olongapo,Philippines, and within the jurisdiction ofthis Honorable Court, the above namedaccused, after having received from oneDanilo Tangcoy, one men s diamon d ring,18k worth P45,000.00; one 1) three bahtmen s bracelet, 22k worth P25,000.00;one 1) two-baht men s necklace, 22kworth P16,000.00; and one 1) two-bahtladies bracelet, 22k worth P12,000.00, orin the total amount of Ninety EightThousand Pesos (98,000.00), PhilippineCurrency, under the express obligationon the part of said accused to remit theproceeds of the sale of the said items orto return the same, if not sold, but saidaccused, once in possession of the saiditems, with intent to defraud, and withunfaithfulness and abuse of confidence,and far from complying with his aforestated obligation, did then and therewillfully unlawfully, and feloniouslymisappropriate, misapply and convert tohis own personal use and benefit theaforesaid jewelries or the proceeds of thesale thereof, and despite repeateddemands, the accused failed and refusedto return the said items or to remit theamount of Ninety-Eight Thousand Pesos(P98,000.00) Philippine Currency, to thedamage and prejudice of said DaniloTangcoy in the aforementioned amount.

CONTRARY TO LAW.

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Upon arraignment, with assistance of counsel, petitionerpleaded not guilty to the crime charged.

On July 30, 2004, after trial on the merits, the trial courtrendered Judgment finding petitioner guilty beyond reasonabledoubt of the crime charged, and sentencing him to suffer the


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.penalty of imprisonment for four 4) years and two 2) monthsas minimum to fourteenth (14) years and eight 8) months as

Aggrieved, petitioner filed an appeal before the Court ofAppeals. On March 22, 2007, the Court of Appeals rendered a;Decision affirming the trial court s judgment howevermodifying the penalty to four 4) years and two 2) months of;prision correctional, as minimum, to eight 8) years of prisionmayor, as maximum, plus incremental penalty of one year foreach additional Php 10,000.00 for total maximum of 15 years.Petitioner moved for a reconsideration of said decision, but the.\motion was denied in a Resolution dated September 5, 2007.

Hence, the present Petition for Review.On July 16, 2013, the Supreme Court En Banc issued a

. Resolution requiring the OSG to file i ts Comment and Answers. to the issues set forth by the Court within twenty (20) days

ISSU S

Thus, the following issues and questions were presented:

I Whether or not the penaltyimposed on Corpuz should be modified byconsidering the present value of the thingsubject to his offense adjusted to the1932 prices, considering that thelegislature decided the amounts subjectto these penalties in 1932; and

II. Whether or not that portion ofArticle 315 that imposes a maximumpenalty based on the amount of the fraud

2 An Motion for Extension of time to file the supplemental comment was filed on August14, 2013 asking an additional 10 days or until August 28, 2013.


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exceeding P 22,000 should be declaredunconstitutional and void for beingdisproportionate and excessively harsh inview of the decline of the value of moneysince 1932.

III. Procedurally, may the Courtexercise the power of judicial review evenwhen the, petition fails to raise anyconstitutional challenge? Under whatcircumstances if any can such exercisebe done?

IV. May a mode or duration ofpenalty violate the Equal ProtectionClause or the Unusual PunishmentClause? f yes, what standards must bemet before a penal law or parts of it canbe declared unconstitutional on either ofthose two grounds?

V. Applying such standards, doesArticle 315 of the Revised Penal Codeviolate the Equal Protection Clause or theUnusual Punishment Clause?3

DISCUSSION

,I THE PENALTY IMPOSED TOPETITIONER SHOULD NOT E

MODIFIED

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Interpretation by the courts is not necessary where the law is clear and categorical. The only duty of the court is to

apply the law.

3 Page 3, Resolution dated July 16, 2013.


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The view of modifying the penalty imposed by paragraph.l, Article 315 of the Revised Penal Code by way of ad usting thevalue of the thing subject of the offense to the prices based inthe year 1932 wherein the Code was enacted and took effect is. now put to judicial scrutiny.

In other words, an attempt to interpret the subject penalclause is being sought regardless of its clarity and certaintyfollowing legal and statutory construction principles.

Under the 1987 Constitution the powers of the judiciary

Section 1 ...Judicial power includesthe duty of the court s of justice to settleactual controversies involving rightswhich are legally demandable andenforceable, and to determine whether ornot there has been a grave abuse ofdiscretion amounting to lack or excess ofjurisdiction on the part of any branch orinstrumentality of the Government.

xxx

Sec. 5. The Supreme Court shallhave the following powers:xxx

2) Review, revise, reverse, modifyor affirm on appeal or certiorari as thelaw or the Rules of Court may providefinal judgments and orders of lowercourts in:

a) All cases in which theconstitutionality or validity ofany treaty, international orexecutive agreement, law,presidential decree,


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proclamation orderinstruction ordinance orregulation is in question.

:xxxd) All criminal cases In

which the penalty imposed ISre lusion perpetua or higher.

e) All cases in whichonly an error or question of lawis involved.

5) Promulgate rules concerningthe protection and enforcement ofconstitutional rights pleadingpractice and procedure in allcourts the admission to the practiceof law the Integrated Bar and legalassistance to the underprivileged.Such rules shall provide a simplifiedand inexpensive procedure for thespeedy disposition of cases shall beuniform for all courts of the samegrade and shall not diminishincrease or modify substantiverights. Rules of procedure of specialcourts and quasi-judicial bodiesshall remain effective unlessdisapproved by the Supreme Court.

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Holding that the duty of the courts in cases where theprovision of a law is clear and unambiguous the SupremeCourt explained that the judiciary is merely limited in its

interpretation thusly:

t bears stressing that the first andfundamental duty of the Court is to apply


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the law. When the law is clear and freefrom any doubt or ambiguity, there is noroom for construction or interpretation.As has been our consistent ruling, wherethe law speaks in clear and categoricallanguage, there is no occasion forinterpretation; there is only room forapplication Cebu Portland Cement Co. vs.Municipality of Naga, 24 SCRA-708[1968] .

Where the law 1s clear andunambiguous, it must be taken to meanexactly what it says and the court has nochoice but to see to it that its mandate isobeyed Chartered Bank EmployeesAssociation vs. Ople, 138 SCRA 273[1985]; Luzon Surety Co. Inc. vs. DeGarcia, 30 SCRA 111 [1969]; Quijano vs.Development Bank of the Philippines, 35SCRA 270 [ 1970] .

Only when the law is ambiguous orof doubtful meaning may the courtinterpret or construe its true intent.Ambiguity is a condition of admitting twoor more meanings, of being understood inmore than one way, or of referring to twoor more things at the same time. Astatute is ambiguous if it is admissible oftwo or more possible meanings, in whichcase, the Court is called upon to exerciseone of its judicial functions, which is tointerpret the law according to its trueintent. 4

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Such pronouncement adheres to the salutary doctrine ofseparation of powers guaranteed by no less than ourConstitution, its main purpose, to prevent a concentration ofpower to only one person, tribunal, or group of persons. The4 RCBC v IAC G.R. No 74851, December 9 1999

II


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, principle of separation of powers is designed by its originators. to secure action and at the same time to forestall overaction.,which necessarily results from undue concentration of powers,}and thereby obtain efficiency and prevent deposition5 .

Again, as established by the Supreme Court:

t is axiomatic that the PhilippineLegislature was provided to make thelaw, the office of the Governor-Generalto execute the law, and the judiciary toconstrue the law. What is legislative,an executive, or a judicial act, asdistinguished one from the other, isnot always easy to ascertain. A preciseclassification is difficult. Negativelyspeaking, it has been well said thatThe legislature has no authority toexecute or construe the law, the

executive has no authority to make orconstrue the law, and the judiciaryhas no power to make or execute thelaw. (citing U.S. vs. Ang Tang Ho)6

In imposing the penalty for estafa to petitioner, Article315 admits of no other interpretation that would justifymodifying the penalty imposed by the court.

Neither does it contain any clause or prov1s1on whichwould otherwise reveal a legislative intent to fix the amount ofthe thing involved to the prices in 1932.

Said prov1s1on is clear and categorical and does notrequire further construction from the court. To modify thepenalty by pegging the amount of the thing subject of Estafa tos PANGASINAN TRANSPORTATION CO., INC. vs. THE PUBLIC SERVICE COMMISSIONG.R. No 47065 ,June 26, 1940.6 THE GOVERNMENT OF THE PHILIPPINE ISLANDS vs MILTON E SPINGERDALAMACIO C O S T S ~ and ANSELMO HILARIO G.R. No. L-26979, April 1, 1927,


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its pnce 1n 1932 would not only result in an absurdinterpretation of an otherwise clear and unambiguous

provision of the law but would likewise result to a judicialinterpretation akin to judicial legislation.

When the law is clear, there is no other recourse but toapply it regardless of its perceived harshness. Dura lex sedlex 7

II THE PEN L CL USE UNDERRTICLE 3 5 IS NEITHER

UNCONSTITUTION L NORDISPROPORTION TE LUE BYRE SON OF THE DECLINE OFTHE V LUE OF MONEY SINCE

932

The courts cannot speculate on the value of thePhilippine currency.

The issue presented by the Honorable Court's opposingview, as provided by the Resolution dated July 16, 2013,states that the penalty imposed under paragraph of Article315 must be declared unconstitutional and void for beingdisproportionate and excessively harsh in view of the decline ofthe value of money since 1932. 8

Anent today's value of money, this Honorable Court inthe same Resolution takes into account the value of thePhilippine Peso:

xxx... the value of the peso has enormouslydeteriorated since 1932 when the

7ARLIN B OBIASCA vs JEANE 0. BASALLOTE G.R. No. 176707, February 17, 2010.8 p 3, Corpuz v People SC En Banc, Resolution dated July 16, 2013


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legislature pegged the penalty for estafaon the prevailing value of money at thattime. Figures from the NationalStatistics Office show that a peso in195 when the first official statist icswere taken) is equivalent t Php)95.83 today. It may be assumed fromthis, that the Php) 1 in 1932 cannothave a value lower than Php) 100today. Since Corpuz may be deemed tohave defrauded Tangcoy of the equivalentof only (Php) 980 based on the value thatthe legislature contemplated in 1932rather than the (Php) 98 000 charged inthe information ..

xxx

Moreover in the same Resolution an adjustment of thevalue of money in relation to the provisions of the penal nature, of the Revised Penal Code would result on varying> consequences:

xxx

... (a) on the other crimes punished by theRevised Penal Code where the penalty isdependent on the value of the propertywhich are also valued at 1932 prices and b)on the penalty of Fine which is dependent onthe value of the subject matter of the crime.9

xxx

Paragraph 1 of Article 315 imposes a prison sentence, based solely on the amount of the fraudulent transactionconstructed on a law that was enacted in 1930 by thePhilippine Legislature that took effect in January 1, 1932.Petitioner herein was found guilty of estafa of jewelries worth

9 p. 2, Ibid.


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leaving no doubts as to its interpretation. t is also part of the Judge's duty to apply the corresponding penalty for the crime\offense and impose judgment based thereon.

A liberal construction in favor of the petitioner theretocannot be applied since the application of the penalties, sansthe present value of money, is clear and unambiguous. Apenal statute defines a criminal offense and prescribes its

' corresponding fine, penalty, or punishment. t is a statute thatcalls for a penalty as opposed to one providing for a remedy fora wronged party. To a certain degree, court decisions,judgments and resolutions cannot also be a basis fordetermining or interpreting the present value of money insofar

as penal statutes are concerned since they merely explain the''application of the law. Outside penal statutes, if a law or astatute desires the actual or current value of money, animplementing rule and regulation must be promulgated as a/ filling in the details mechanism to arrive at the policy of the

l w it seeks to implement. Such must hold also in penalstatutes.However, public respondent agrees on this Honorable

Court's opposite view on the adjustment of monetary values onaccount of inflation amounts.

Said adjustment would then alter the legislative intentthat was clearly expressed in the Revised Penal Code, which isa penal statute to start with. As correctly pointed out by this. Honorable Court in the same Resolution, any issue on theseverity of the penalty imposed under the law should be left tothe legislature to decide.

t is also respectfully submitted that the penalty imposedtherein is not excessive, insofar as what the policy of the law itsought to protect is concerned.

In our jurisdiction, mere severity relating to the term ofimprisonment does not constitute cruel or unusualpunishment. Swindling is classified as a crime againstproperty. Hence, the value of the property involved would be


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; ,inimical in determining the imposition of the punishment.~ h e r e is nothing oppressive in the penal clause of Article 315since what the law against swindling seeks to punish are thecriminal elements of deceit and the act of defrauding an

/innocent resulting in his damage and prejudice. 10 In fact, the::damage caused by the deceit is not limited to the material'damage since any disturbance or prejudice is constitutive ofdamage under the said provision. 1

A penalty against a penal act or omission is not excessiveit seeks to sanction the said act or omission for the

protection of the public at large. Penal laws (and those ofpublic security and safety) are also obligatory upon the publicat large. 12 The dictates of public policy are being advocated by

,'imposing a higher penalty for deceitful swindlers. Also, the\xeason behind the enactment of the sanctions is solely'',addressed to the legislature. By analogy, such premise is

explained in the case of Lozano v Martinez:

Previous efforts to deal with the problemof bouncing checks within the ambit ofthe law on estafa did not evoke anyconstitutional challenge. In contrast, BP22 was challenged promptly.Those who question the constitutionalityof BP 22 insist that: ... 3) it contravenesthe equal protection clause; 4) it undulydelegates legislative and executivepowers;

xxxThe constitutional challenge to BP 22posed by petitioners deserves asearching and thorough scrutiny and themost deliberate consideration by theCourt, involving as it does the exercise ofwhat has been described as the highest

10 People v Estoista 93 Phil 647, August 27, 1953.People v Benemerito 264 SCR 667 (1996)12 Article 14, Civil Code of the Philippines, R.A. 386


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Nonetheless, a curative statute must not violate anyconstitutional provisions, nor destroy vested rights of thirdpersons as well as affect a judgment that has become final. 4

Anent the issue presented by this Honorable Court onwhether the penalty based on the value of the property inrelation to Article 315 of the Revised Penal Code isUnconstitutional for being excessively harsh and

>:disproportionate to the present value of the Philippine Peso

. III COURTS CANNOT EXERCISE.THE POWER OF JUDICIAL:REVIEW IN THE BSENCE OF A CONSTITUTIONAL CHALLENGE

Although the court is endowed with the judicial power tonullify a law for being unconstitutional, such power is not~ w i t o u t limitation..:

The exercise of the Supreme Courts power of judicial.review involves the determination of whether or not there has. been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality ofthe government.1s

In Angara v Electoral Commission 3 the Supreme Courtdiscoursed:

...The Constitution sets forth in no uncertainlanguage the restrictions and limitations upongovernmental powers and agencies. f theserestrictions and limitations are transcended, itwould be inconceivable i f the Constitution had notprovided for a mechanism by which to direct thecourse of government along constitutional channels,

14 Goshen v Stonington, 4 Conn. 209 Aetna v O malley, (Mo.) 118 S.S. 2nd) 315 Section 1, Article VIII, 1987 Constitution.


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in this manner, the judiciary does not pass uponquestions o wisdom justice or expediency olegislation. More than that, courts accord thepresumption of constitutionality to legislativeenactments not only because the legislature ispresumed to abide by the Constitution but alsobecause the judiciary in the determination of actualcases and controversies must reflect the wisdom andjustice of the people as expressed through theirrepresentatives in the executive and legislativedepartments of the government.

The aforecited limitation prevents the Court to raise the issue of constitutionality on its own. The constitutionality ofthe penal statute is not the lis mota of the case.

Admittedly, the issue on the constitutionality of Articleof the Revised Penal Code or portion thereof was notraised before the appellate court by any party. Without raisingsuch issue, a discussion on the constitutionality of the said. penal statute is rendered completely unnecessary.

Lis mota or the cause of the suit or action as the last, requisite of judicial review is simply an offshoot of thepresumption of validity accorded to the executive andlegislative acts of our co-equal branches of the government.Ultimately, it is rooted in the principle of separation of powers.

Given the presumed validity of an executive act, the petitionerwho claims otherwise has the burden of showing first that thecase cannot be resolved unless the constitutional question heraised is determined by the Court. 19

Failure by any party to raise the issue of the.constitutionality of Article 315 of the Revised Penal Codemeans there is no actual case or controversy that merits discussion on the issue.

19 Francisco vs. House ofRepresentative, G R No 160261 Nov. 10 2003.


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The power of judicial review can only be exercised in;connection with a bona fide controversy involving a statute, its/ implementation or a government action. Withal, courts willdecline to pass upon constitutional issues through advisoryopinions, bereft as they are of authority to resolve hypothetical

i or moot questions. The limitation on the power of judicialreview to actual cases and controversies defines the rolef:assigned to the judiciary in a tripartite allocation of power, toassure that the courts will not intrude into areas committed to

,:the other branches of government.20t is a well-settled maxim of adjudication that an issue(a,ssailing the constitutionality of a governmental act should be

/avoided whenever possible. Thus, in the case of Sotto v\Commission on Elections 2 this Honorable Court held:

It is a well-established rule that a courtshould not pass upon a constitutionalquestion and decide a law to beunconstitutional or invalid, unless suchquestion is raised by the parties and thatwhen it is raised, if the record alsopresents some other ground upon whichthe court may rest its judgment thatcourse will be adopted and theconstitutional question will be left forconsideration until case arises in which

decision upon such question will beunavoidable.

Thus, based on prevailing jurisprudence, this HonorableCourt cannot exercise the power of judicial review to rule onthe constitutionality of Article 315 of the Revised Penal Code.

20 Francisco vs. TRB G.R. 166910, October 19, 2010., 2176 Phil 516 (1946).

I

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evil or harm and legislation is addressedto evils as they may appear.24

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The guaranty of the equal protection of the laws is notviolated by a legislation based on reasonable classification.25To be reasonable it is necessary that the four 4) requisites ofvalid classification be complied with viz:

1 t must be based upon substantialdistinctions;

2) It must be germane to the purposes ofthe law;3) t must not be limited to existing

conditions only; and4) It must apply equally to all members

of the class.26

Article 315 of the Revised Penal Code meets the.reasonable classification in so far as the penalties for thecriminal act sought to be sanctioned is concerned.

Anent the first requisite Art. 315 is based uponsubstantial distinctions. The first requirement means thatthere must be real and substantial differences between theclasses treated differently.21

It is suggested that since estafais crime against property andsupposedly not as heinous as crimes24 Central Bank now Bangko Sentral ng Pilipinas Employees Association, Inc. vs.Bangko Sentral ng Pilipinas and the Executive Secretary, G.R. No. 148208 December 152004.25Mendoza vs. PeopleofthePhilippines, G.R. No. 183891 October 19 2011.26 Quinto and Tolentino vs. Commission on Elections, G.R. No. 189698 December 1,

r 2009.27 Ibid.


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against persons or chastity, such asmurder or rape, t should not beequated with the latter felonies injustifying the denial o bail to theaccused. From the precedingdisquisition the obvious riposte is thatthis is a matter which should properly beaddressed to the legislature. It is not forthis Court by judicial legislation to amendthe pertinent provisions of the RevisedPenal Code much less the Constitution.Nor is it for us to intrude into the policyconsiderations absent blatant abuse oflegislative power or capricious exercisethereof which impelled the legislativecategorization of an offense as being soabominable or execrable s to call for adenial of the right to bail. On this score,we can take judicial notice thatmultimillion or large-scale estafacases and inveterate or professionalswindlers have inflicted untolddamages and misery not only on oneor two but on countless victims in thiscountry.2s Emphasis supplied)

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Second it is germane to the purposes of the law. TheState has the authority under its police power to define and:'punish crimes and to lay down the rules of criminal:>"procedure. States as part of their police power have a large:1 :measure of discretion in creating and defining criminaloffenses.29

The purpose of Article 315 is to punish the offenders andprosecute them in accordance with the mandate of the

. legislature. To bolster the penalty imposed in the crime of:estafa, the Court has held that:

8 People of the Philippines vs. Reyes G.R. Nos. 101127-31 August 7 1992. 29 p.2, Reyes Luis B. The Revised Penal Code Criminal Law 16th Edition 2006 citingthe case of People vs. Santiago 43 Phil. 120 124.


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From the foregoing discussion it isevident that the legislative criteria for theimposition of reclusion perpetua in saidoffenses took into account not only theinherent odious or outrageous nature ofthe crime such as the taking of a life oran assault against chastity but alsoeither the moral depravity or criminalperversity shown by the acts of theaccused or the necessity for protection ofproperty in the governmental financial oreconomic interests of the country. Theobjectives of Presidential Decree No. 818are indubitably within the ambit of thesame legislative intendment and theforegoing justifications for the impositionof higher penalties and the consequentdenial of bail to the malefactor. 3

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Third it is not limited to existing conditions only. Theapplication of the Revised Penal Code in general isprospective in nature. Criminal laws should always be givenprospective application; otherwise they become expostfacto.31

Lastly it applies equally to all members of the class.Clearly Article 315 applies to all offenders of the same.

t is fundamental that all reasonable doubts should be.resolved in favor of the constitutionality of a statute. An act ofthe legislature approved by the executive is presumed to bewithin constitutional limitations. To justify any nullification ofa law there must be a clear and unequivocal breach of theConstitution not a doubtful and equivocal breach.32

Equally untenable is the claim that Article 315 of theRevised Penal Code violates the unusual punishment clause.30 People of the Philippines vs. Reyes supra.31 Morales, et al. vs. People of he Philippines, G R No 144047 July 26 2002

. 32 Central Bank now Banglco Sentral ng Pilipinas) Employees Association, Inc. vs.Bangko Sentral ng Pilipinas and the Executive Secretary, supra.


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Section 19(1) of Article III of the 1987 Constitutionprohibits the infliction of cruel, degrading or inhumanpunishment. t bears noting that the Constitution refersrimarily to physical punishment.33

/ A look at the origin of the clause is enlightening. The case)f United tates vs. Jacinto Borromeo et al. 4 provides a very

~ ~ u c i d t i n g background, to wit:

The prohibition in the Philippine Billagainst cruel and unusual punishmentsis an Anglo-Saxon safeguard againstgovernmental oppression of the subject,which made its first appearance in thereign of William and Mary of England inAn Act declaring the rights and libertiesof the subject and settling the successionof the crown, passed in the year 1689. Ithas been incorporated into theConstitution of the United States and intomost of the constitutions or the variousStates in substantially the same languageas that used in the original statute. Theexact language of the Constitution of theUnited States is used in the PhilippineBill. It fallows that punishments providedin legislation enacted by the farmersovereign of these Islands must beconsidered according to the standardobtaining in the United States in order todetermine whether they are cruel andunusual.

As also observed by this Honorable Court in itsResolution, a review of American jurisprudence reveals thatthere are two schools of thought with respect to cruel andunusual punishment clause.33 p. 975, Hector S. De Leon and Hector M. De Leon, Jr. Philippine Constitutional law: Principles and Cases, Fifth Edition, 2012.34 G.R. No. L-7150, October 16, 1912.


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According to the first view, the test to be applied indetermining whether a penalty is in violation of thisconstitutional provision is not the proportion between theoffense and the punishment, but the character of thepunishment and its mode of infliction, and that the legislativediscretion in determining the severity of the punishment forcrime is not to be interfered with by the courts, so long as allforms of torture are avoided. The other view alternativelyholds that this constitutional provision is broad enough to\ confer upon the courts the power to review legislative discretion concerning the adequacy of the punishment in veryextreme cases; where the punishment proposed is so severeand out of proportion to the offense as to shock public.sentiment and violate the judgment of reasonable people. 35

Turning now to Philippine jurisprudence, this jurisdictioncharacterizes punishment as cruel and/ or inhuman when itinvolves torture or lingering death such as burning alive,mutilation, starvation and other barbarous punishments. 36

{Thus, it takes more than merely being harsh, excessive, out ofproportion or severe for a penalty to be obnoxious to theConstitution. 37

The form of punishment contemplated by the PhilippineConstitution is consistent with the purpose of guarantee asstated in McElvaine vs. Brush 38 i.e. to eliminate many of the

barbarous and uncivilized punishments formerly known theinfliction of which would barbarize present civilization.Prescinding from this purpose, it can be said that theprohibition is generally aimed at the form or character of thepunishment rather than its severity or harshness in respect of

duration or amount. t looks only to the form or nature of the

35 United States vs. Jacinto Borromeo et al. supra. citing Weems vs. United States (21 7U.S., 349, 54 L. ed., 793), People ex rel Kemmler vs. Durston (119 N.Y., 569), Ely vs.Thompson 3 A. K Marsh (Reu.), 70), Railroad Co. vs. People Ex rel. Koerner (67 Ill., 11,27, 16 Am. Rep., 599, 611), Robinson vs. Miner and Haug (68 Mich. 549, 563).36 Leo Echegaray vs. The Secretary ofJustice et al. G.R. No. 132601, October 12, 1998.37 Lim vs. People 390 SCRA 194 (2002).

, 38 McElvaine vs. Brush 142 U.S. 155.

i: I, II


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penalty and not to the proportion between the penalty and the< rime 39

In estafa it is essential that damage or prejudice capablejf pecuniary estimation is caused to the offended party orthird person. This is because the amount of damage is thebasis for the penalty. The pertinent portion of Article 315 ofthe Revised Penal Code applicable to the case at bar provides:

Article 315 Swindling estafa). -Any person who shall defraud another byany of the means mentioned hereinbelowshall be punished by:1st. The penalty of prision correccional inits maximum period to prision mayor inits minimum period if the amount of thefraud is over 12 000 pesos but does notexceed 22 000 pesos and if such amountexceeds the latter sum the penaltyprovided in this paragraph shall beimposed in its maximum period addingone year for each additional 10 000pesos; but the total penalty which may beimposed shall not exceed twenty years. Insuch cases and in connection with theaccessory penalties which may beimposed under the provisions of thisCode the penalty shall be termed prisionmayor or reclusion temporal, as the casemay be.

Settled is the rule that a punishment authorized by statute is not cruel, degrading or disproportionate to the natureof the offense unless it is flagrantly and plainly oppressive andwholly disproportionate to the nature of the offense as to shock.the moral sense of the community. To reiterate it takes more. than merely being harsh, excessive, out of proportion or severe

for a penalty to be obnoxious to the Constitution. Based on this, 9People vs. Estoista, 93 Phil. 647 [1953].


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,;;principle, the Court has consistently overruled contentions ofithe defense that the penalty of fine or imprisonment:authorized by the statute involved is cruel and degrading. 4

The case of People v Estoista4 clearly explains what anunusual punishment is, to wit:

It takes more than merely beingharsh, excessive, out of proportion, orsevere for a penalty to be obnoxious tothe Constitution. The fact that thepunishment authorized by the statute issevere does not make it cruel andunusual. Expressed in other terms, ithas been held that to come under theban, the punishment must be flagrantlyand plainly oppressive, whollydisproportionate to the nature of theoffense as to shock the moral sense of thecommunity. Having in mind thenecessity for radical measure and thepublic interest at stake, we do notbelieve that five years confinement forpossessing firearms, even as applied toappellant s and similar case, can besaid to be cruel and unusual,barbarous, or excessive to the extent ofbeing shocking to public conscience.

t 1s well-settled that as far as the constitutional, prohibition dictates, it is not so much the extent as to the.nature of the punishment that determines whether it is, or isnot, cruel and unusual and that sentences of imprisonment,though perceived to be harsh, are not cruel or unusual ifwithin statutory limits. 42 Furthermore, under the utilitariantheory, the protective theory in criminal law affirms that the

40 Lim v People supra.41 Supra.42 Padilla v Court of Appeals G.R No. 121917, March 12, 1997 citing Baylosis vChavez Jr. 202 SCRA 405, 417.

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primary function of punishment is the protection of the societyagainst actual and potential wrong doers. 4 3

The case of People v Dacuycuy expounds on the matter:

The Constitution directs thatExcessive fines shall not be imposed, nor

cruel and unusual punishment inflicted.The prohibition of cruel and unusualpunishments is generally aimed at theform or character of the punishmentrather than its severity in respect ofduration or amount, and apply topunishments which never existed inAmerica, or which public sentiment hasregarded as cruel or obsolete, for instancethere (sic) inflicted at the whipping post,or in the pillory, burning at the stake,breaking on the wheel, disemboweling,and the like. Fine and imprisonmentwould not thus be within theprohibition.

The question that should be asked,further, is whether the constitutionalprohibition looks only to the form ornature of the penalty and not to theproportion between the penalty and thecnme.

The answer thereto may be gatheredfrom the pronouncement in People vs.Estoista where an excessive penaltywas upheld as constitutional and wasimposed but with a recommendation forexecutive clemency, thus:

.. .If imprisonment from 5 to 10years is out of proportion to the present

43 Vergara v People G.R. No. 160328, February 4, 2005.44Q.R. No. L-45127, May 5, 1989.


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constitutional scheme it has the poweronly to apply the law.

Page 3 of 36

Having in mind the necessity for a radical measure and.the public interest at stake, the graduated penalties set byArticle 315 of the Revised Penal Code nor the indeterminate;penalty of 4 years and 2 months of prision correccional asminimum to 8 years of prision mayor as maximum, plusincremental penalty of 1 year for each additional Phpl0,000.for a maximum of 15 years, imposed by the Court of Appealsin the case at bar cannot be said to be cruel and unusual,parbarous, or excessive to the extent of being shocking topublic conscience.

That the penalty is grossly disproportionate to the crime isYan insufficient basis to declare the law unconstitutional on theground that it is cruel and unusual The fact that thepunishment authorized by the statute is severe does not makeit cruel or unusual.

In addition, what degree of disproportion the Court willconsider as obnoxious to the Constitution has still to awaitappropriate determination in due time since, to the credit of

'our legislative bodies, no decision has as yet struck down a.penalty for being cruel and unusual or excessive. 46

PR YER

WHEREFORE premises considered, it is respectfullyprayed that the Petition dated November 5, 2007 be denied.

6 G.R. No. L-45127 May 5 1989.


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