EN BANC
[ G.R. No. 95136, October 03, 1991 ]
RAFAEL BAYLOSIS AND BENJAMIN DE VERA, PETITIONERS, VS. HON. APOLONIO R. CHAVEZ, JR., RIZAL PROVINCIAL PROSECUTOR MAURO CASTRO, COL. VIRGILIO SALDAJENO, HON. FRANKLIN M. DRILON, JR., HON. FIDEL V. RAMOS AND GEN. RENATO DE VILLA, RESPONDENTS.
D E C I S I O N
NARVASA, J.:
The constitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is put at issue in the special action of certiorari, prohibition and mandamus at bar. That provision punishes with the penalty of reclusion
perpetua,[1] any person who unlawfully manufactures, deals in, acquires, disposes of, or possesses any firearm[2] "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion."
This is the second such attack against the provision. The first was launched sometime in 1988 and eventually repelled in this Court's decision in Misolas v. Panga, rendered on January 30, 1990.[3] The Court in that case declined to hold the provision unconstitutional, overruling such arguments as that
The case at bar originated from an information filed in the Regional Trial Court at Pasig charging petitioners Rafael Baylosis and Benjamin de Vera, together with one Marco Palo, with a violation of PD 1866,[4] committed as follows:
Baylosis and de Vera thereupon instituted the present action in this Court. Here, they plead for the nullification and setting aside of the Trial Judge's Orders of April 24, 1990 and July 12, 1990; the dismissal of Criminal Case No. 72705 or, alternatively, that the information therein be considered as charging only simple rebellion; and that the public officials impleaded as respondents the Rizal Public Prosecutor, the Secretary of Justice, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the Special Military Prosecutor be "restrained from further initiating, filing or prosecuting cases involving common crimes against the petitioners."
What the petitioners advocate at bottom is that a doctrine laid down by jurisprudence or case law is superior to a statute afterwards enacted by legislative authority; that decisions construing certain specific provisions of one law are sufficient basis for a declaration of the unconstitutionality of a subsequently enacted law. More specifically, they contend that the rulings in People v. Amado Hernandez[5] (reiterated in some ten other subsequent rulings), Enrile v. Salazar,[6] and Enrile v. Amin[7] to the effect that the felony of rebellion defined and penalized in the Revised Penal Code cannot, in accordance with Article 48 of the same Code, be complexed with the offense of murder, homicide, arson, or other crimes committed in connection with, or on the occasion or in furtherance of, rebellion render invalid, as unconstitutional, Section 1 (3) of Presidential Decree No. 1866, as amended.
The petitioners further posit the unconstitutionality of the challenged provision because "repugnant to the provisions of the 1987 Constitution, which guarantee full respect for human rights, equal protection of the laws, due process, right to bail, protection against double jeopardy and from cruel, degrading or inhuman punishment, and supremacy of civilian authority over the military."
PD 1866 was enacted on June 29, 1983[8] by the late President Marcos in the exercise of his legislative powers under the 1973 Constitution, with the avowed purpose, indicated in its title, to codify "the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or disposition, of firearms, ammunition or explosives or instruments used in the manufacture of firearms, ammunition or explosives; and imposing stiffer penalties for certain violations thereof and for relevant purposes." The section (numbered 1) containing the allegedly unconstitutional provision[9] reads as follows:
It is worthy of note that under this section
1) simple possession of a firearm without license or lawful authority (or unlawful manufacture, dealing in, acquisition, or disposal of any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition), without more, is punished by reclusion temporal maximum to reclusion perpetua a penalty that, to be sure, is heavier than prision mayor, which is the penalty prescribed for rebellion or insurrection by Article 135 of the Revised Penal Code;
2) indeed, even if the firearm be licensed but is brought by the possessor outside of his residence without authority, the penalty imposed for the act is prision mayor, the same sanction as for rebellion;
3) the penalty is however increased to death (now reclusion perpetua[10]) if
a) the unlicensed firearm is used in the commission of murder or homicide, or
b) the unlicensed firearm (or part thereof, or ammunition or machinery, tool or instrument in the manufacture of any firearm or ammunition) is possessed, dealt in, acquired, disposed of or possessed in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion.
Equally noteworthy is that the same PD 1866, as amended,[11] also defines as a crime punishable by reclusion temporal in its maximum period to reclusion perpetua, the act of any person
But the even higher penalty of death (now reclusion perpetua) is imposed if the aforementioned explosives, detonation agents or incendiary devices
1) are used in the commission of any of the crimes defined in the Revised Penal Code, and this results in the death of any person or persons; or
2) are manufactured, assembled, dealt in, acquired, disposed of or possessed "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion * * * ."
It is of no little significance that the petitioners do not condemn these other provisions of Sections 1 and 3 defining crimes also involving possession or manufacturing and/or use of firearms, ammunition and explosives, and penalizing them by reclusion temporal maximum to reclusion perpetua, or even by death as being unconstitutionally infirm because imposing cruel or unusual punishment, or violative of due process, or otherwise.
What they say is that "laws and jurisprudence on political crimes are intended, and should always be interpreted, as favoring the political offender" since "political crimes are committed by the best of patriots," a theory that, it is said, runs counter to the Misolas decision[12] and impels re-examination of the latter. What they condemn is the imposition of such heavy penalties on the crime of possession, manufacture or use of firearms or explosives if committed "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion," as if by some juridic alchemy, relation to rebellion or subversion works a transformation in the nature of the crimes in question. The contention, in other words, as the petitioners unabashedly affirm, is that the act of illicitly possessing or using a firearm is ennobled and mitigated by its being connected with an attempt or a publicly asserted intention to overthrow the Government; that killers, arsonists, terrorists should not be treated as "common criminals," i.e., condemned and punished as the killers, arsonists or terrorists that they are, if they commit their acts of violence and destruction in the name of "the Revolution." This is sophistry, totally unacceptable under the constitutional scheme of things in this country. It is a theory which has never been and should never be sanctioned by this Court. It is a proposition that is not in essence defensible, especially in the context of contemporary events.[13]
The petitioners further theorize that Section 1 (3) of PD 1866 is invalid because it gives the public prosecutor an option not to file a case for rebellion and instead file as many crimes for murder, frustrated murder, etc. as might have been perpetrated in furtherance of, or incident to, or in connection with rebellion, insurrection or subversion. The argument is not tenable. The fact is that the Revised Penal Code treats rebellion or insurrection as a crime distinct from murder, homicide, arson, or other felonies that might conceivably be committed in the course of a rebellion. It is the Code, therefore, in relation to the evidence in the hands of the public prosecutor, and not the latter's whim or caprice, which gives the choice. The Code allows, for example, separate prosecutions for either murder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter. Surely, whether people are killed or injured in connection with a rebellion, or not, the deaths or injuries of the victims are no less real, and the grief of the victims' families no less poignant.
Moreover, it certainly is within the power of the legislature to determine what acts or omissions other than those set out in the Revised Penal Code or other existing statutes are to be condemned as separate, individual crimes and what penalties should be attached thereto. The power is not diluted or improperly wielded simply because at some prior time the act or omission was but an element or ingredient of another offense, or might usually have been connected with another crime.
The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex rebellion with the so called "common" crimes committed in furtherance, or in the course, thereof; this, on the authority alone of the first sentence of Article 48 of the Revised Penal Code. Stated otherwise, the ratio of said cases is that Article 48 cannot be invoked as the basis for charging and prosecuting the complex crime of rebellion with murder, etc., for the purpose of obtaining imposition of the penalty for the more serious offense in its maximum period (in accordance with said Art. 48). Said cases did not indeed they could not and were never meant to proscribe the legislative authority from validly enacting statutes that would define and punish, as offenses sui generis, crimes which, in the context of Hernandez, et al. may be viewed as a complex of rebellion with other offenses. There is no constitutional prohibition against this, and the Court never said there was. What the Court stated in said cases about rebellion "absorbing" common crimes committed in its course or furtherance must be viewed in light of the fact that at the time they were decided, there were no penal provisions defining and punishing, as specific offenses, crimes like murder, etc. committed in the course or as part of a rebellion. This is no longer true, as far as the present case is concerned, and there being no question that PD 1866 was a valid exercise of the former President's legislative powers. Thus, Misolas,[14] to the effect that charging the qualified offense of illegal possession of firearms under PD 1866 does not charge the complex crime of subversion with illegal possession of firearms, and hence does not run counter to Hernandez, et al., is good and correct rule and is applicable here.
In Enrile v. Salazar, the Court intimated that the remedy against the perceived lightness of the penalty for rebellion was not to be sought from the courts, but by legislation. It may not unreasonably be supposed that the purpose of PD 1866 appears to be precisely to remedy that perceived lenity of the penalty prescribed by the Revised Penal Code for rebellion or insurrection and the legal impossibility, pronounced by this Court, of complexing that felony with other crimes punished by higher penalties in accordance with Article 48 of the same Code.
It is next argued that the proviso in question is unconstitutional because it inflicts on the convicted felon a cruel or unusual punishment, considering that the Revised Penal Code penalizes rebellion or subversion only by prision mayor. The penalty fixed in said challenged section is, it is contended, flagrantly and plainly oppressive, greatly disproportionate to the offense, and shocking to the people's sense of justice. The result, it is further argued, is that the right to bail is denied under PD 1866 when the act thereby punished is only an ingredient of simple rebellion or subversion (which are bailable offenses) under the Revised Penal Code.
It is well settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.[15] As pointed out by a brother in the Court, a noted authority on Constitutional Law, this Court has held (in People v. Dionisio, 22 SCRA 1299), "that mere severity does not constitute cruel and unusual punishment. Reiterating the rule first announced in People v. Estoista (93 Phil. 674), it declared that 'it takes more than merely being harsh, excessive out of proportion, or severe for a penalty to be obnoxious to the Constitution . . . 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.'"[16] The same noted author further points out that "a penalty not normally proportionate to the offense may be imposed in some instances without violation of the Constitution * * * (as) for example, where the offense has become so rampant as to require the adoption of a more effective deterrent, like the stealing of jeeps or coconuts, which is punished by the Revised Penal Code as qualified theft"[17] -- or, it may be added, like such crimes as assassinations, bombings and robberies which are committed nowadays with frightening frequency and seeming impunity with the use of high-powered weapons, explosives or similar devices, whether in connection with or in furtherance or pursuance of, rebellion or subversion, or not.
It bears repeating in this connection that mere possession of a firearm without license or lawful authority,[18] without more, is punished by reclusion temporal maximum to reclusion perpetua; and that the use of an unlicensed firearm in the commission of murder or homicide is punished by death (now reclusion perpetua[19]), yet there is no challenge to these penalties as being cruel or unusual.
The petitioners next proffer the argument that the Revised Penal Code punishes the crime of rebellion or insurrection (including the "common crimes" of murder, homicide, arson, etc. therein absorbed) only with the penalty of prision mayor. Comparisons, as the saying goes, are odious; and in this case, the attempt to compare PD 1866 with the Revised Penal Code is unwarranted. That there is a difference in penalty between the two laws does not necessarily establish that the heavier penalty imposed by one of said laws is excessive, disproportionate, or "cruel or unusual." For it might be argued, too, and certainly not without more than a modicum of validity, that the penalty in the Penal Code for rebellion may be regarded as unduly light given the conditions now prevailing in the country. In fact, no lack of commensuration may be pleaded if the avowed premises of PD 1866 (particularly the first, second and fifth whereas clauses of the preamble) are taken into account, viz.:
It is also argued that PD 1866 offends against the equal protection clause of the Constitution in that government prosecutors may arbitrarily choose those they want to prosecute under said law and those under Article 135 of the Revised Penal Code (or RA 1700, the Anti-Subversion Act). The argument is unimpressive. It is not much different from saying that a suspected killer is denied the equal protection of the laws because the prosecutor charges him with murder, not homicide, both crimes, though essentially consisting in the taking of human life, being punished with different penalties under separate provisions of the penal code. As already stressed, it is the prerogative of the legislature to determine what acts or omissions shall be deemed criminal offenses and what sanctions should attach to them. Certainly, the public prosecutors should have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one. Now, if government prosecutors make arbitrary choices of those they would prosecute under a particular law, excluding from the indictment certain individuals against whom there is the same evidence as those impleaded, the fault is not in the law but in the prosecutors themselves whose duty it is to file the corresponding information or complaint against all persons who appear to be liable for the offense involved,[20] a duty that should be performed responsibly, without discrimination, arbitrariness or oppression. If that duty is not performed evenhandedly, the persons aggrieved are not without remedy. They may avail of the remedy of mandamus to compel compliance with that duty by the prosecutors concerned.[21]
The petitioners' invocation of the doctrine of double jeopardy as an argument against the constitutionality of PD 1866 is equally futile. They maintain that a person held liable under PD 1866 can still be made to answer subsequently for rebellion. The argument is here disposed of by simply adverting to the resolution of that self-same contention in Misolas:
SO ORDERED.
Fernan, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, and Davide, Jr., JJ., concur.
Gutierrez, J., I join J. Cruz in his dissent.
Cruz and Sarmiento, JJ., see dissent.
Regalado, J., I join Justice Sarmiento in his dissent.
[1] The penalty of death was originally imposed by the law, but upon effectivity of the 1987 Constitution was deemed ipso facto reduced to reclusion perpetua in view of the proscription (in Sec. 19, ART. III of said Constitution) of the imposition of the death penalty.
[2] Or "part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition"
[3] 181 SCRA 648, verdict arrived at by a vote of 12 to 3; Cortes, J., ponente
[4] Annex C, petition
[5] 99 Phil. 515 (1956)
[6] 186 SCRA 217 (1990)
[7] G.R. No. 93375, Sept. 13, 1990
[8] With effect "after fifteen (15) days following the completion of its publication in the Official Gazette" (Sec. 10)
[9] Indicated by italics and underscoring in the reproduced section; see footnotes 1 and 2, supra
[10] SEE footnote 1, supra
[11] Sec. 3
[12] Misolas v. Panga, 181 SCRA 648 (1990)
[13] In Enrile v. Salazar, 186 SCRA 217, 233, a similar observation was made: "It may be that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing revolution."
[14] Id.
[15] SEE 10A Words and Phrases, Perm. Ed., pp. 307, 311, 315-316
[16] Cruz, I.A., Constitutional Law, 1985 ed., p. 304
[17] Op. cit., pp. 304-305
[18] Or of hand-grenade(s), rifle grenade(s), and other explosives, including but not limited to 'philbox bombs (sic),' 'molotov cocktail bomb,' 'firebombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person
[19] SEE footnotes 1 and 10, supra
[20] Secs. 2 and 6, Rule 110, Rules of Court, as amended
[21] Guiao v. Figueroa, 94 Phil. 1018, 1021-1023 (1954); de Castro, Jr. v. Castañeda, 1 SCRA 1131, 1134-1135 (1961), both cited in Jacinto, G.V., Criminal Procedure, 1979 ed., p. 8
This is the second such attack against the provision. The first was launched sometime in 1988 and eventually repelled in this Court's decision in Misolas v. Panga, rendered on January 30, 1990.[3] The Court in that case declined to hold the provision unconstitutional, overruling such arguments as that
a) the questioned paragraph is violative of the principle of "substantive due process against arbitrary laws * * * because it disregards the overwhelming weight of national as well as international laws and jurisprudence behind the Hernandez (99 Phil. 515) and Geronimo (100 Phil. 90) rulings on the doctrine of absorption of common crimes in rebellion;"This second challenge to the constitutionality of said third paragraph of Section 1 of Presidential Decree No. 1866 relies on essentially the same arguments as those put forth in support of the first, petitioners' insistence to the contrary notwithstanding. Since it does not seem that the passage of time has infused any validity into those arguments, they shall again be struck down as specious, and the second constitutional challenge, like the first, repulsed.
b) it has given rise to the practice of charging armed rebels or subversives with "'qualified' illegal possession of firearms instead of subversion or rebellion ** (because) (1) the former is easier to prosecute than the latter; and (2) the former has a higher penalty * * *;"
c) it is a bill of attainder; and
d) it allows a second jeopardy.
The case at bar originated from an information filed in the Regional Trial Court at Pasig charging petitioners Rafael Baylosis and Benjamin de Vera, together with one Marco Palo, with a violation of PD 1866,[4] committed as follows:
"That on or about the 29th day of March, 1988 in the Municipality of San Juan, Metro Manila, Philippines ** ** , the above named accused, all known high ranking officers of the Communist Party of the Philippines, and its military arm, the New Peoples Army, conspiring and confederating together and mutually helping each other, did then and there willfully, unlawfully and feloniously have in their possession, control and custody, in furtherance of, or incident to, or in connection with the crimes of rebellion/subversion, the following, to wit:Baylosis, de Vera, and Palo, filed a motion to quash the information on the following grounds, viz.:
- Firearms/Ammunition
One (1) AK 47 Automatic Rifle with M22N006726 with magazine and 9 rounds
- Explosives
Three (3) pieces fragmentation hand grenades without first securing the necessary license or permit thereof from a competent government authority.
"I. THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE BECAUSE THEY ARE FOUNDED ON AN UNCONSTITUTIONAL/ REPEALED STATUTE.After receiving the parties' arguments on the matter, the Trial Court denied the motion to quash, by an extended Resolution dated April 24, 1990. A motion for reconsideration filed by Baylosis, et al. was also denied in an Order dated July 12, 1990.
b) "FOR THE SAME REASONS, THIS HONORABLE COURT IS DEVOID OF JURISDICTION TO TRY THIS CASE."
Baylosis and de Vera thereupon instituted the present action in this Court. Here, they plead for the nullification and setting aside of the Trial Judge's Orders of April 24, 1990 and July 12, 1990; the dismissal of Criminal Case No. 72705 or, alternatively, that the information therein be considered as charging only simple rebellion; and that the public officials impleaded as respondents the Rizal Public Prosecutor, the Secretary of Justice, the Secretary of National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the Special Military Prosecutor be "restrained from further initiating, filing or prosecuting cases involving common crimes against the petitioners."
What the petitioners advocate at bottom is that a doctrine laid down by jurisprudence or case law is superior to a statute afterwards enacted by legislative authority; that decisions construing certain specific provisions of one law are sufficient basis for a declaration of the unconstitutionality of a subsequently enacted law. More specifically, they contend that the rulings in People v. Amado Hernandez[5] (reiterated in some ten other subsequent rulings), Enrile v. Salazar,[6] and Enrile v. Amin[7] to the effect that the felony of rebellion defined and penalized in the Revised Penal Code cannot, in accordance with Article 48 of the same Code, be complexed with the offense of murder, homicide, arson, or other crimes committed in connection with, or on the occasion or in furtherance of, rebellion render invalid, as unconstitutional, Section 1 (3) of Presidential Decree No. 1866, as amended.
The petitioners further posit the unconstitutionality of the challenged provision because "repugnant to the provisions of the 1987 Constitution, which guarantee full respect for human rights, equal protection of the laws, due process, right to bail, protection against double jeopardy and from cruel, degrading or inhuman punishment, and supremacy of civilian authority over the military."
PD 1866 was enacted on June 29, 1983[8] by the late President Marcos in the exercise of his legislative powers under the 1973 Constitution, with the avowed purpose, indicated in its title, to codify "the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or disposition, of firearms, ammunition or explosives or instruments used in the manufacture of firearms, ammunition or explosives; and imposing stiffer penalties for certain violations thereof and for relevant purposes." The section (numbered 1) containing the allegedly unconstitutional provision[9] reads as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion, the penalty of death shall be imposed.
The penalty reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs.
It is worthy of note that under this section
1) simple possession of a firearm without license or lawful authority (or unlawful manufacture, dealing in, acquisition, or disposal of any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition), without more, is punished by reclusion temporal maximum to reclusion perpetua a penalty that, to be sure, is heavier than prision mayor, which is the penalty prescribed for rebellion or insurrection by Article 135 of the Revised Penal Code;
2) indeed, even if the firearm be licensed but is brought by the possessor outside of his residence without authority, the penalty imposed for the act is prision mayor, the same sanction as for rebellion;
3) the penalty is however increased to death (now reclusion perpetua[10]) if
a) the unlicensed firearm is used in the commission of murder or homicide, or
b) the unlicensed firearm (or part thereof, or ammunition or machinery, tool or instrument in the manufacture of any firearm or ammunition) is possessed, dealt in, acquired, disposed of or possessed in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion.
Equally noteworthy is that the same PD 1866, as amended,[11] also defines as a crime punishable by reclusion temporal in its maximum period to reclusion perpetua, the act of any person
" * * * who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand-grenade(s), rifle grenade(s), and other explosives, including but not limited to 'philbox bombs (sic),' 'molotov cocktail bomb,' 'firebombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.In other words, the mere possession of the weapons (or the unlawful manufacture or assembly thereof, or dealing in, acquisition or disposal thereof) is also punished by reclusion temporal maximum to reclusion perpetua, a penalty higher than that imposed for rebellion or insurrection, prision mayor, supra.
But the even higher penalty of death (now reclusion perpetua) is imposed if the aforementioned explosives, detonation agents or incendiary devices
1) are used in the commission of any of the crimes defined in the Revised Penal Code, and this results in the death of any person or persons; or
2) are manufactured, assembled, dealt in, acquired, disposed of or possessed "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion * * * ."
It is of no little significance that the petitioners do not condemn these other provisions of Sections 1 and 3 defining crimes also involving possession or manufacturing and/or use of firearms, ammunition and explosives, and penalizing them by reclusion temporal maximum to reclusion perpetua, or even by death as being unconstitutionally infirm because imposing cruel or unusual punishment, or violative of due process, or otherwise.
What they say is that "laws and jurisprudence on political crimes are intended, and should always be interpreted, as favoring the political offender" since "political crimes are committed by the best of patriots," a theory that, it is said, runs counter to the Misolas decision[12] and impels re-examination of the latter. What they condemn is the imposition of such heavy penalties on the crime of possession, manufacture or use of firearms or explosives if committed "in furtherance of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion," as if by some juridic alchemy, relation to rebellion or subversion works a transformation in the nature of the crimes in question. The contention, in other words, as the petitioners unabashedly affirm, is that the act of illicitly possessing or using a firearm is ennobled and mitigated by its being connected with an attempt or a publicly asserted intention to overthrow the Government; that killers, arsonists, terrorists should not be treated as "common criminals," i.e., condemned and punished as the killers, arsonists or terrorists that they are, if they commit their acts of violence and destruction in the name of "the Revolution." This is sophistry, totally unacceptable under the constitutional scheme of things in this country. It is a theory which has never been and should never be sanctioned by this Court. It is a proposition that is not in essence defensible, especially in the context of contemporary events.[13]
The petitioners further theorize that Section 1 (3) of PD 1866 is invalid because it gives the public prosecutor an option not to file a case for rebellion and instead file as many crimes for murder, frustrated murder, etc. as might have been perpetrated in furtherance of, or incident to, or in connection with rebellion, insurrection or subversion. The argument is not tenable. The fact is that the Revised Penal Code treats rebellion or insurrection as a crime distinct from murder, homicide, arson, or other felonies that might conceivably be committed in the course of a rebellion. It is the Code, therefore, in relation to the evidence in the hands of the public prosecutor, and not the latter's whim or caprice, which gives the choice. The Code allows, for example, separate prosecutions for either murder or rebellion, although not for both where the indictment alleges that the former has been committed in furtherance of or in connection with the latter. Surely, whether people are killed or injured in connection with a rebellion, or not, the deaths or injuries of the victims are no less real, and the grief of the victims' families no less poignant.
Moreover, it certainly is within the power of the legislature to determine what acts or omissions other than those set out in the Revised Penal Code or other existing statutes are to be condemned as separate, individual crimes and what penalties should be attached thereto. The power is not diluted or improperly wielded simply because at some prior time the act or omission was but an element or ingredient of another offense, or might usually have been connected with another crime.
The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex rebellion with the so called "common" crimes committed in furtherance, or in the course, thereof; this, on the authority alone of the first sentence of Article 48 of the Revised Penal Code. Stated otherwise, the ratio of said cases is that Article 48 cannot be invoked as the basis for charging and prosecuting the complex crime of rebellion with murder, etc., for the purpose of obtaining imposition of the penalty for the more serious offense in its maximum period (in accordance with said Art. 48). Said cases did not indeed they could not and were never meant to proscribe the legislative authority from validly enacting statutes that would define and punish, as offenses sui generis, crimes which, in the context of Hernandez, et al. may be viewed as a complex of rebellion with other offenses. There is no constitutional prohibition against this, and the Court never said there was. What the Court stated in said cases about rebellion "absorbing" common crimes committed in its course or furtherance must be viewed in light of the fact that at the time they were decided, there were no penal provisions defining and punishing, as specific offenses, crimes like murder, etc. committed in the course or as part of a rebellion. This is no longer true, as far as the present case is concerned, and there being no question that PD 1866 was a valid exercise of the former President's legislative powers. Thus, Misolas,[14] to the effect that charging the qualified offense of illegal possession of firearms under PD 1866 does not charge the complex crime of subversion with illegal possession of firearms, and hence does not run counter to Hernandez, et al., is good and correct rule and is applicable here.
In Enrile v. Salazar, the Court intimated that the remedy against the perceived lightness of the penalty for rebellion was not to be sought from the courts, but by legislation. It may not unreasonably be supposed that the purpose of PD 1866 appears to be precisely to remedy that perceived lenity of the penalty prescribed by the Revised Penal Code for rebellion or insurrection and the legal impossibility, pronounced by this Court, of complexing that felony with other crimes punished by higher penalties in accordance with Article 48 of the same Code.
It is next argued that the proviso in question is unconstitutional because it inflicts on the convicted felon a cruel or unusual punishment, considering that the Revised Penal Code penalizes rebellion or subversion only by prision mayor. The penalty fixed in said challenged section is, it is contended, flagrantly and plainly oppressive, greatly disproportionate to the offense, and shocking to the people's sense of justice. The result, it is further argued, is that the right to bail is denied under PD 1866 when the act thereby punished is only an ingredient of simple rebellion or subversion (which are bailable offenses) under the Revised Penal Code.
It is well settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within statutory limits.[15] As pointed out by a brother in the Court, a noted authority on Constitutional Law, this Court has held (in People v. Dionisio, 22 SCRA 1299), "that mere severity does not constitute cruel and unusual punishment. Reiterating the rule first announced in People v. Estoista (93 Phil. 674), it declared that 'it takes more than merely being harsh, excessive out of proportion, or severe for a penalty to be obnoxious to the Constitution . . . 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.'"[16] The same noted author further points out that "a penalty not normally proportionate to the offense may be imposed in some instances without violation of the Constitution * * * (as) for example, where the offense has become so rampant as to require the adoption of a more effective deterrent, like the stealing of jeeps or coconuts, which is punished by the Revised Penal Code as qualified theft"[17] -- or, it may be added, like such crimes as assassinations, bombings and robberies which are committed nowadays with frightening frequency and seeming impunity with the use of high-powered weapons, explosives or similar devices, whether in connection with or in furtherance or pursuance of, rebellion or subversion, or not.
It bears repeating in this connection that mere possession of a firearm without license or lawful authority,[18] without more, is punished by reclusion temporal maximum to reclusion perpetua; and that the use of an unlicensed firearm in the commission of murder or homicide is punished by death (now reclusion perpetua[19]), yet there is no challenge to these penalties as being cruel or unusual.
The petitioners next proffer the argument that the Revised Penal Code punishes the crime of rebellion or insurrection (including the "common crimes" of murder, homicide, arson, etc. therein absorbed) only with the penalty of prision mayor. Comparisons, as the saying goes, are odious; and in this case, the attempt to compare PD 1866 with the Revised Penal Code is unwarranted. That there is a difference in penalty between the two laws does not necessarily establish that the heavier penalty imposed by one of said laws is excessive, disproportionate, or "cruel or unusual." For it might be argued, too, and certainly not without more than a modicum of validity, that the penalty in the Penal Code for rebellion may be regarded as unduly light given the conditions now prevailing in the country. In fact, no lack of commensuration may be pleaded if the avowed premises of PD 1866 (particularly the first, second and fifth whereas clauses of the preamble) are taken into account, viz.:
1) "there has been an upsurge of crimes vitally affecting public order and safety (including, not to say specially, offenses of rebellion or subversion) due to the proliferation of illegally possessed and manufactured firearms, ammunition and explosives;"The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more effective measures against these nefarious activities, including of course more stringent laws and more rigorous law-enforcement, cannot be gainsaid.
2) "these criminal acts have resulted in loss of human lives, damage to property and destruction of valuable resources of the country;"
3) "there are some provisions in * * * (the) laws and presidential decrees which must be updated and revised in order to more effectively deter violators of the law on firearms, ammunition and explosives."
It is also argued that PD 1866 offends against the equal protection clause of the Constitution in that government prosecutors may arbitrarily choose those they want to prosecute under said law and those under Article 135 of the Revised Penal Code (or RA 1700, the Anti-Subversion Act). The argument is unimpressive. It is not much different from saying that a suspected killer is denied the equal protection of the laws because the prosecutor charges him with murder, not homicide, both crimes, though essentially consisting in the taking of human life, being punished with different penalties under separate provisions of the penal code. As already stressed, it is the prerogative of the legislature to determine what acts or omissions shall be deemed criminal offenses and what sanctions should attach to them. Certainly, the public prosecutors should have the option to ascertain which prosecutions should be initiated on the basis of the evidence at hand. That a criminal act may have elements common to more than one offense does not rob the prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense although the evidence before him may warrant prosecution of the more serious one. Now, if government prosecutors make arbitrary choices of those they would prosecute under a particular law, excluding from the indictment certain individuals against whom there is the same evidence as those impleaded, the fault is not in the law but in the prosecutors themselves whose duty it is to file the corresponding information or complaint against all persons who appear to be liable for the offense involved,[20] a duty that should be performed responsibly, without discrimination, arbitrariness or oppression. If that duty is not performed evenhandedly, the persons aggrieved are not without remedy. They may avail of the remedy of mandamus to compel compliance with that duty by the prosecutors concerned.[21]
The petitioners' invocation of the doctrine of double jeopardy as an argument against the constitutionality of PD 1866 is equally futile. They maintain that a person held liable under PD 1866 can still be made to answer subsequently for rebellion. The argument is here disposed of by simply adverting to the resolution of that self-same contention in Misolas:
"The right against double jeopardy is a matter which the accused may raise in a motion to quash (Sec. 3[h], Rule 117). But, precisely, petitioner's motion to quash filed in the trial court did not raise the issue of double jeopardy because it had not arisen. The Court cannot anticipate that the opportunity for a second jeopardy will still arise if he is acquitted or convicted as charged under P.D. 1866.WHEREFORE, the petition is DENIED for lack of merit, with costs against petitioners.
"Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be rendered unconstitutional. That an accused will be exposed to double jeopardy if he is prosecuted under another law is not a ground to nullify that law. Double jeopardy is merely a defense that an accused may raise to defeat a subsequent prosecution or conviction for the same offense."
SO ORDERED.
Fernan, C.J., Melencio-Herrera, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, and Davide, Jr., JJ., concur.
Gutierrez, J., I join J. Cruz in his dissent.
Cruz and Sarmiento, JJ., see dissent.
Regalado, J., I join Justice Sarmiento in his dissent.
[1] The penalty of death was originally imposed by the law, but upon effectivity of the 1987 Constitution was deemed ipso facto reduced to reclusion perpetua in view of the proscription (in Sec. 19, ART. III of said Constitution) of the imposition of the death penalty.
[2] Or "part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition"
[3] 181 SCRA 648, verdict arrived at by a vote of 12 to 3; Cortes, J., ponente
[4] Annex C, petition
[5] 99 Phil. 515 (1956)
[6] 186 SCRA 217 (1990)
[7] G.R. No. 93375, Sept. 13, 1990
[8] With effect "after fifteen (15) days following the completion of its publication in the Official Gazette" (Sec. 10)
[9] Indicated by italics and underscoring in the reproduced section; see footnotes 1 and 2, supra
[10] SEE footnote 1, supra
[11] Sec. 3
[12] Misolas v. Panga, 181 SCRA 648 (1990)
[13] In Enrile v. Salazar, 186 SCRA 217, 233, a similar observation was made: "It may be that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-called rebels to be part of, an ongoing revolution."
[14] Id.
[15] SEE 10A Words and Phrases, Perm. Ed., pp. 307, 311, 315-316
[16] Cruz, I.A., Constitutional Law, 1985 ed., p. 304
[17] Op. cit., pp. 304-305
[18] Or of hand-grenade(s), rifle grenade(s), and other explosives, including but not limited to 'philbox bombs (sic),' 'molotov cocktail bomb,' 'firebombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person
[19] SEE footnotes 1 and 10, supra
[20] Secs. 2 and 6, Rule 110, Rules of Court, as amended
[21] Guiao v. Figueroa, 94 Phil. 1018, 1021-1023 (1954); de Castro, Jr. v. Castañeda, 1 SCRA 1131, 1134-1135 (1961), both cited in Jacinto, G.V., Criminal Procedure, 1979 ed., p. 8