I. FUNDAMENTAL PRINCIPLES

Question 1

What is criminal law?

Answer 1

Criminal law is a branch of municipal law that defines crimes, treats their nature, and provides for their punishment.

Question 2

Explain nullum crimen, nulla poena sine lege

Answer 2

there is no crime where there is no law punishing it

Question 3

What are the schools of thought in criminal law?

Answer 3

Classical theory, positivist theory, eclectic or mixed theory, utilitarian theory

Penalties (as punishment) are imposed either:

(1) to “satisfy the community’s retaliatory sense of indignation that is provoked by injustice” (Black’s Law Dictionary, 8th Ed., p. 1270) — or for retribution following the classical or juristic school of thought underlying the criminal law system (Boado, Notes and Cases on the Revised Penal Code, 2012 Ed., p. 9);

(2) to “change the character of the offender” (Black’s Law Dictionary, Eight Ed., p. 1270) — or for reformation pursuant to the positivist or realistic school of thought (Boado, Notes and Cases on the Revised Penal Code, 2012 Ed., pp. 9-10);

(3) to “prevent the repetition of wrongdoing by disabling the offender” (Black’s Law Dictionary, 8th Ed., p. 1270) — following the utilitarian theory (Boado, Notes and Cases on the Revised Penal Code, 2012 Ed., p. 11); or

(4) for both retribution and reformation pursuant to the eclectic theory (Boado, Notes and Cases on the Revised Penal Code, 2012 Ed., p. 11).

FOOTNOTE 157 in Samahan ng mga Progresibong Kabataan v. Quezon City, G.R. No. 225442, [August 8, 2017], 815 PHIL 1067-1174

Question 4

Explain classical theory of criminal law

Answer 4

The basis for criminal liability is human free will. Man is essentially a moral creature with an absolute free will to choose between good and evil. When he commits a felonious or criminal act, the act is presumed to have been done voluntarily, i.e. with freedom, intelligence, and intent.

Man, therefore, should be adjudged or held accountable for wrongful acts so long as free will appears unimpaired. (People v. Estrada, 2000)

Question 5

Explain positivist theory of criminal law

Answer 5

The basis of criminal liability is the total of the social and economic phenomena to which the offense is expressed.

The purpose of the penalties is to secure justice. The penalties imposed must not only be retributive, they must also be reformative. They must allow the convict to live a new life and rejoin society as a productive and civic-spirited member of the community. (Joya v. Jail Warden of Batangas)

Question 6

Explain the eclectic or mixed theory

Answer 6

The eclectic or mixed theory combines the good features of classical and positivist theories. It is believed that our RPC adheres to this theory because although the Code is mainly based on classical theory, there are some provisions that pertain to the positivist theory like the mitigating circumstances under Article 13.

Question 7

Explain the utilitarian theory

Answer 7

To “prevent the repetition of wrongdoing by disabling the offender” (Black’s Law Dictionary, 8th Ed., p. 1270) — following the utilitarian theory (Boado, Notes and Cases on the Revised Penal Code, 2012 Ed., p. 11); or

Question 8

What theory of criminal law is the RPC based on?

Answer 8

Classical school of thought

Question 9

Concepts related to construction of penal law principles

Answer 9

Pro Rea principle; Spanish Text rule; Title and Body of penal provision; Technical meaning of a wor

Question 10

Explain the pro reo principle

Answer 10

In dubio pro reo - when in doubt, rule for the accused.

The rule applies when the corut is faced with two possible interpretations of a penal statute – one that is prejudicial to the accused and another that is favorable to him.

The rule calls for the adoption of an interpretation that is more lenient to the accused.

Question 11

Spanish text as a rule of construction

Answer 11

The RPC was written in Spanish and the English text is just a translation.

In interpreting the provisions of the RPC, the Spanish text of the said Code is controlling as this was the text approved by the Legislature.

Question 12

Can the Title of a provision modify the words in the text of the provision?

Answer 12

No. Being nothing more than a convenient index to the contents of the articles of the Code, they cannot, in any event, have the effect of modifying the words of the text.

Question 13

How do we use the technical meaning of words in interpreting RPC provisions?

Answer 13

If words have a technical meaning under the law or jurisprudence, the legislature is deemed to have adopted the technical concept of such words in crafting a particular statute.

E.g. “personal property” is technical meaning under the Civil Code.

Question 14

May provisions in Book 1 of the Revised Penal Code be applied to special laws?

Answer 14

As a general rule, offenses punishable under special laws are not subject to the provisions of Book One of the RPC.

There are two exceptions to the general rule: (1) If the special law expressly says so, or (2) in a supplementary manner.

Question 15

When will provisions in Book 1 of the Revised Penal Code be applicable to special laws?

Answer 15

There are two exceptions to the general rule: (1) If the special law expressly says so, or (2) in a supplementary manner.

Question 16

What are the requisites for the RPC Book 1 provisions to apply supplementarily to special law?

Answer 16

There are two requisites to supplementarily apply the provisions of the Code to offenses under special laws, to wit: (1) the special law is deficient in the rule needed to resolve a particular issue; (2) the special law does not explicitly prohibit the application of the provisions of the Code.

Question 17

What are the two penal systems in Revised Penal Code?

Answer 17

Spanish penal system and the American penal system

Question 18

Explain the Spanish penal system

Answer 18

Spanish penal system - based on the proportionate penal system of the classical theory, under which the gravity of the penalty must be in proportion to the seriousness of the criminality in the offender’s mind.

Question 19

Explain the American penal system

Answer 19

American penal system provides a fixed penalty or a penalty with minimum and maximum limits such as imprisonment for one year.

Question 20

What is the Simon principle?

Answer 20

If the special law has adopted the terms of the RPC in its penalty, the legislative intention is to apply the RPC.

Question 21

Explain the Simon principle in the following contexts:
1. Penalties
2. Stages of a crime
3. Nature of participation

Answer 21

Penalties - if the penalty prescribed by special law is borrowed from the Revised Penal COde, the penal provisions of the Code are applicable. If the penalty prescribed by special law is not borrowed from the RPC, the penal provisions of the Code are not applicable.

Stages of crime - If the penalty prescribed by special law is borrowed from the RPC, the rules on graduation of penalty in connection with stages of a crime (consummated, frustrated, and attempted crime) under Articles 6 and 50 to 57 of the Code are applicable. If the penalty prescribed by special law is not borrowed from the RPV, such rules are not applicable. However, the special laws may provide special rules on the stages of a crime.

Nature of participation - If the penalty prescribed by special law is borrowed from the RPC, the rules on the graduation of penalty in connection with the nature of participation of offender (principal, accomplice, and accessory) under Article 17 to 19 and 509 to 57 are applicable. If the penalty prescribed by special law is not borrowed from the RPC, such rules are not applicable. However, the special laws may provide special rules on the nature of the offender’s participation.

Question 22

Distinguish mala in se from mala prohibita

Answer 22

Mala in se and mala prohibita are distinguished as follows:

1. Mala in se are inherently wrong or immoral, while mala prohibita are not inherently wrong; they are only wrong because they are prohibited by law;
2. In mala in se, good faith or lack of criminal intent is a defense, while in mala prohibita, good faith is not a defense.
3. Mala in se are punishable under the RPC and special laws where the acts punishable therein are inherently wrong.

Mala prohibita are punishable under special laws. However, technical malversation is malum prohibitum, yet it is punishable under the RPC.

4. Modifying circumstances can be appreciated in mala in se unless the special laws that punish them “have not adopted” the technical nomenclature of the penalty of the RPC. Modificatory circumstances will not be appreciated in mala prohibita unless the special laws that punish them “have adopted” the technical nomenclature of the penalties of the RPC.

Question 23

Give example of a malum prohibitum crime that is defined and punished by the RPC

Answer 23

Technical malversation.

The SC declared technical malversation as malum prohibitum in Ysidoro v. People. According to the court, no matter how noble or miniscule the amount diverted, the act constitutes the crime of technical malversation. Criminal intent is not an element of technical malversation. The law punishes the act of diverting public property earmarked by law or ordinance for a particular public prupose to another public purpose. The offense is malum prohibitum, meaning that the prohibited act is not inherently immoral but becomes a criminal offense because positive law forbids its commission based on considerations of public policy, order, and convenience.

Question 24

Examples of crimes which are punished by special law, not inherently wrong, declared by the SC as malum prohibitum

Answer 24

Violation of BP 22; Illegal recruitment; Crimes involving dangerous drugs; possession of loose firearms

Question 25

Examples of crimes which are actually inherently wrong but declared as malum prohibitum by the SC just because they are punished by special law

Answer 25

Fencing - fencing is substantially siilar to that of theft or robbery. It is inherently wrong but declared by the SC as malum prohibitum in Cahulugan v. People, Estrella v. People;

Hazing - hazing is inherently wrong but the SC declared it as malum prohibitum in Villareal v. People

Sexual harassment - declared as malum prohibitum in Escandor v. People

Question 26

Examples of crimes which are inherently wrong, punishable by special law, and declared by SC as malum in se

Answer 26

Election offense - Garcia v. CA;
Child pornography - Cadajas v. People

Question 27

The two views in classification of a crime as malum in se or malum prohibitum in offenses punished under special laws

Answer 27

First view - punishable by special law means malum prohibitum
Second view - even if by special law, if intent is an element or it is punished because it is inherently wrong, it is malum in se

Question 28

Are malum in se crimes only found in the RPC?

Answer 28

No. The SC ruled in Dungo v. People that it is a common misconception that all mala in se crimes are found in the Revised Penal Code, while all mala prohibita crimes are provided by special penal laws. In realtiy, there are mala in se crimes under special laws, such as plunder under R.A. No. 7080. Similarly, there are mala proihibita crimes under the Revised Penal Code, such as technical malversation.

The better approach to distinguish between mala in se and mala prohibita crimes is the determination of the inherent immorality or vileness of the penalized act. If the punishable act or omission is immoral in itself, then it is a crime malum in se; on the contrary, if it is not immoral in itself, but there is a statute prohibiting its commission by public policy reasons, then it is malum prohibitum.

**NOTE FOR THE BAR: Sexual abuse, fencing, hazing, or sexual harassment has been considered mala prohibita by the Court. Child abuse, plunder, child pornography, carnapping, piracy, or highway robbery/brigandage under PD No 532, trafficking in person or terrorism, the SC has ruled that this is mala in se.

Question 29

Is there a crime which can be both a malum in se and malum prohibitum?

Answer 29

Yes. It is settled that violation of RA No. 3019 partakes of the nature of malum prohibitum. However, the offense under Section 3(e) may be committed either by dolo, as when the accused acted with evident bad faith or manifest partiality, or by culpa, as when the accused committed gross inexcusable negligence. Since malice, evident bad faith, or manifest partiality is an element of Section 3(e), this crime also partakes the character of malum in se.

Question 30

Define “moral turpitude”

Answer 30

Black’s Law Dictionary - an act of baseness, vileness, or depravity in the private duties which a man owes his fellow-men, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. The term “moral turpitude” is considered as encompassing “everything which is done contrary to justice, honesty, or good morals.”

In Dela Torre v. COMELEC, the SC ruled that whether a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute.

Question 31

Can distinction of malum in se and malum prohibitum be basis for determining whether a crime involves moral turpitude?

Answer 31

No. Whether moral turpitude does or does not exist cannot always be ascertained by merely classifying a crime as malum in se or as malum prohibitum. Some crimes are mala in se, and yet they are not involving moral turpitude, and some crimes involve moral turpitude, and yet they are mala prohibita. Not every criminal act involves moral turpitude, and that as to what crime involves morla turpitude is for the SC to determine (Villaber v. COMELEC)

Question 32

Is BP 22 crime of moral turpitude?

Answer 32

Yes, the SC ruled in People v. Tuanda that it is a crime of moral turpitude, even though a violation of BP 22 is not inherently wrong for being a malum prohibitum.

Question 33

Is failure to file a tax return a crime of moral turpitude?

Answer 33

No. The SC held in Republic v. Marcos that the failure to file an income tax return is not a crime involving moral turpitude as the mere omission is already a violation regardless of the fraudulent intent or willfulness of the individual.

Question 34

What are the three characteristics of criminal law?

Answer 34

Generality, Territoriality, and Prospectivity

Question 35

Define generality principle

Answer 35

Generality - Under Article 14 of the Civil Code, penal laws shall be obligatory upon all who live or sojourn in the Philippine territory.

Question 36

Define territoriality principle

Answer 36

Territoriality - Article 2 of the Revised Penal Code provides that the provisions of the Revised Penal Code shall be enforced within the Philippine territory.

The Philippines has criminal jurisdiction for crimes committed within its territory.

Question 37

Define prospectivity principle

Answer 37

Prospectivity - criminal law merely punishes crimes committed on or after its effectivity.

Under Article 21 of the Revised Penal Code, no felony shall be punishable by any penalty not prescribed by law before tis commission.

Question 38

Can the accused invoke his foreign nationality as defense in prosecution of a crime committed in the Philippines?

Answer 38

No. The foreign characteristic of the offender does not exclude him from the operation of penal laws. The generality principle provides that penal laws shall be obligatory upon all who live or sojourn in the Philippine territory.

Question 39

Can the accused invoke his being a military officer as a defense in criminal prosecution for a crime committed in the Philippines?

Answer 39

Penal laws are obligatory for military men residing or sojourning in the Philippines. THe courts ahve jurisdiction to try military offenders charged with violating the penal laws. Its jurisdiction is unaffected by his military or other special character. However, service-connected crimes shall be tried by court-marital as mandated by RA No. 7055.

Question 40

Differentiate: territoriality vs generality

Answer 40

The concept of generality is different from territoriality. The applicability of the territoriality principle or generality principle will dpeend on the issue raised by the accused in invoking criminal immunity.

If the accused invokes immunity because of the unique characteristic of his person (eg. he is a foreigner, military, hermit, primitive, ambassador, legislator, president), the applicable principle is generality.

If the accused invokes immunity due to the unique character of the place where the crime was committed (e.g. the place of commission is a foreign vessel, embassy, or high seas, etc.), the applicable penalty is territoriality.

Question 41

What are the exceptions to the generality principle?

Answer 41

The following are principles to the generality principle:
Principles of public international law - Article 14 NCC;
Treaty stipulation - Article 14 NCC;
Laws of preferential application;
Case law.

Question 42

Explain principle of international law as basis for exception to generality principle

Answer 42

Principles of public international law may be basis for exception to the generality principle. Penal laws are not obligatory to persons entitled to criminal immunity because of the principles of PIL.

Consular officers are immune from criminal prosecution of acts performed in the exercise of function.

NOTE: Immunity does not cover slander (Liang v. People) or reckless imprudence-resulting in homicide for not being function-related BUT diplomatic agents are vested with blanket immunity.

Question 43

Does diplomatic immunity cover slander?

Answer 43

No, unless person committing the crime is covered by blanket immunity, such as diplomatic agent, or are Ministers, Presidents, Ambassadors, Chief of Mission.

Liang v. People held that immunity does not cover slander.

Question 44

Is a commercial attache a diplomatic agent?

Answer 44

No, a commercial attache is not a diplomatic and does not enjoy blanket immunity unlike a diploamtic agent, consular officers, Ministers, Presidents, Ambassadors, Chief of Mission,.

Question 45

Is a Chargé d’affaires immune from criminal prosecution for multiple frustrated and attempted murders?

Answer 45

A Charge d’affaires is immune from criminal prosecution for multiple frustrated and attempted murders. (Bar 2016)

Question 46

Explain laws of preferential application as basis for exception to principle of generality

Answer 46

Laws of preferential application are statutes, the application of which exempt persons from the generality principle of criminal law. For example, Article 349 of the Revised Penal Code provides that bigamy is not obligatory for Muslims married under Muslim laws. Under the Code of Muslim Personal Laws, penal laws relative to the crime of bigamy shall not apply to a person married under Muslim law where the requirements set therein are met. The Code of Muslim Personal Laws (Pres. Dec. No. 1083) is a law of preferential application.

NOTE: However, suppose the marriage is not solemnized under Muslim law. In that case, the accused cannot claim criminal exemption from liability for bigamy on his religious belief as a Muslim because of the generality principle. PD No. 1083 is not applicable since the marriage was not made under Muslim law. (Nollora v. People, Malaki v. People)

Question 47

Explain case law as an exception to the generality principle

Answer 47

While there is no express provision of law providing for such exemption, there are Supreme Court decisions which have held that certain persons are exempt from the generality principle. An example is the President of the Philippines who is entitled to immunity from suit.

There is no express provision for presidential immunity under the 1987 Constitution. But despite this, case law recognizes this immunity. Because of this immunity, penal alws are not obligatory for the president.

NOTE: Requisites for the Presidential immunity to apply: (1) the immunity has been asserted; (2) during the period of his incumbency and tenure; and (3) the act constituting the crime is committed in the performance of his duties.

NOTE: However, after the tenure, the President can be criminally charged since hte presidential immunity is not invocable anymore.

Question 48

Is the Vice-President immune from suit?

Answer 48

Campanilla’s answer:

No, it is submitted that the Vice-President is not immune from suit. The duties of the Vice-President do not require undivided attention, unlike the President. Moreover, the Vice-President may still fulfill his or her functions while serving a sentence. However, as an accessory penalty, the Vice-President cannot be removed from office since this will offend the impeachment provision of the Constitution.

Question 49

When do we consider the place of occurrence of the effect of the criminal act when determining the venue and the territoriality rule?

Answer 49

When the effect is an element of the crime.

For purposes of venue under the Rules of Criminal Procedure and territoriality principle under the Revised Penal Code, the place of commission of the criminal act and the place of occurrence of the effect of such act, which is an element of the crime, shall be considered.

E.g. psychological violence in VAWC. psychological effect occurred in PH although committed outside PH.

However, if the commission of the criminal act consummates the crime and the effect thereof is not an element of the crime, the place of occurrence of the effect shall not be considered for venue and territoriality rule.

E.g. Bigamy, even if offended party is in the PH, the crime was committed in a foreign land. Psychological effect of bigamy is not an element of the crime of bigamy.

Question 50

Are embassy grounds within the scope of territoriality?

Answer 50

Yes. An embassy of another state in the Philippines is still within Philippine territory. Thus, a person who committed a crime within the premises of an embassy shall be prosecuted under the law of the Philippines because of the principle of territoriality.

NOTE: However, the jurisdiction of the Philippines over the embassy is limited or restricted by the “principles of inviolability of diplomatic premises,” which is a generally accepted principle of International Law. A warrant of arrest cannot be served inside the US embassy without a waiver from the US government of its right under the principle of inviolability.

Question 51

What are territorial waters?

Answer 51

Territorial waters refer to all waters seaward to a line 12 nautical miles distant from the archipelagic baseline over which the Philippines exercises jurisdiction. These waters are between the national or archipelagic waters, the Philippines’ territorial lands, and the high seas. Territorial waters do not include national waters within the baseline drawn under the archipelago doctrine.

Question 52

What are the three rules regarding crimes committed aboard a foreign merchant vessel within the 12-mile territorial waters of the Philippines?

Answer 52

French Rule, English Rule, Convention of the Law of the Sea rule

Question 53

Explain the French Rule

Answer 53

French Rule - crimes committed aboard a foreign merchant vessel within the territorial water of the Philippines are subject to the jurisdiction of the flag state UNLESS their commission affects the peace and security of the Philippines.

GR: The flag state of the foreign merchant vessel has jurisdiction over crimes committed aboard the vessel that is within the PH’s (coastal/archipelagic state’s) territorial waters
XPN: The crimes affect the security of the PH (coastal/archipelagic state).

Question 54

Explain the English Rule

Answer 54

English Rule - crimes committed aboard a foreign merchant vessel within the territorial water of the Philippines (coastal state) are subject to the jurisdiction of the Philippines UNLESS their commission does not affect the peace and security of the Philippines, or has no pernicious effect therein.

GR: PH has jurisdiction over crimes committed aboard foreign merchant vessel that is within its territorial waters [Coastal state/Archipelagic state has jurisdiction]
XPN: The crimes committed do not affect the peace and security of the PH, or it has no pernicious effect in the PH.

Question 55

Explain the rule on territoriality under the UNCLOS for crimes committed aboard foreign vessels

Answer 55

UNCLOS rule - The flag state of a foreign merchant vessel passing through the territorial sea of the Philippines (coastal state) has jurisdiction over crimes committed therein [like the French Rule].

However, the PH can exercise jurisdiction to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage in the following cases:
(1) the consequences of the crime extend to the Philippines;
(2) if the crime is of a kind to disturb the peace of hte Philippines or the good order of the territorial sea thereof;
(3) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or
(4) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.

Question 56

Does the Philippines have sovereignty over its exclusive economic zone?

Answer 56

No. The Philippines has no sovereignty over the 200 mile EEZ. Under the UNCLOS, the PH has a sovereign right to fish and exploit the natural resources in the zone. This sovereign right is not equivalent to sovereignty. Under the convention, foreign States have the freedom of navigation and overflight over the EEZ of the Philippines. Freedom of navigation and overflight cannot be exercised in a place where a State has sovereigny such as its 12-mile territorial water.

The PH only has limited jurisdiction over crimes committed within the EEZ: fiscal, custom, immigration, health, and safety, and violation of the coastal state’s right under the UNCLOS. The existence of freedom of navigation and overflight and the limited jurisdiction over crimes committed in the EEZ militates against the concept of sovereignty.

Question 57

What crimes does the PH have jurisdiction over in its EEZ under the UNCLOS?

Answer 57

There is limited jurisdiction over crimes committed within the EEZ: fiscal, custom, immigration, health, and safety, and violation of the coastal state’s right under the UNCLOS.

Question 58

What is the principle of extraterritoriality under the RPC?

Answer 58

Extraterritoriality principle - the provisions of the Revised Penal Code shall be enforced outside the Philippine territory as provided in Article 2, pars. 1 to 5 of the Revised Penal Code.

Question 59

When does PH have criminal jurisdiction over crimes committed outside its territory?

Answer 59

Revised Penal Code, Article 2:
1. offenses committed while on a Philippine ship or airship;
2. forgery or counterfeiting of any coin or currency note of the Philippines or obligations and securities issued by the Government of the Philippines;
3. acts connected with the introduction of forged/counterfeit coin/currency note/ obligations/ securities into the Philippines (issued by PH gov)
4. offenses committed by public officers or employees abroad in the exercise of their functions;
5. crimes against national security and the law of nations

Question 60

What are the underlying reasons behind the extraterritoriality rule?

Answer 60

The underlying reasons behind the extraterritoriality rules are as follows:

1. Under the flag state rule, a vessel registered in the Philippines is considered an extension of the Philippines;
2. The protective interest principle involving forgery and crimes against national security seeks to protect the financial stability and existence of the State;
3. The extraterritoriality principle involving function-related crimes committed by a public officer is designed to implement the constitutional mandate on public accountability; and
4. The universality principle involving piracy and mutiny protects vessels while traveling on high seas, which is essential in world trade and commerce.

Question 61

Discuss extra-territorial rules on special laws

Answer 61

The territoriality and extra-territoriality principles in Article 2 of the RPC are applicable even if hte crime is punishable under special laws. This has been applied in VAWC cases, and in piracy under PD No. 532 cases. However, Article 2 of the Code does not apply to trafficking in persons, a crime involving terrorism, financing of terrorism, and conspiracy to commit financing of terrorism and cybercrimes because the laws that punish them have specific provisions for the extraterritorial rule.

Question 62

Explain the rule on prospectivity of criminal laws

Answer 62

Under the prospective principle, criminal law merely punishes crimes committed on or after its effectivity. Under Article 21 of the RPC, no felony shall be punishable by any penalty not prescribed by law before its commission.

Question 63

What are the exceptions to the prospective rule?

Answer 63

The exceptions to the prospectivity rule are:
(1) if the law is favorable to the accused, who is not a habitual delinquent;
(2) if the law decriminalizes an act; or
(3) if the law expressly provides retroactivity.

Question 64

What are the requisites to apply penal laws retroactively under Article 22 of the Revised Penal Code?

Answer 64

Revised Penal Code, Article 22 provides: Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal as this term is defined in Rule 5 of Article 62 of [the RPC], although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.

The requisites to applyArticle 22 are: (1) the law is favorable to the accused; and (2) the accused is not a habitual delinquent.

NOTE: Even if the law is favorable to the accused, it shall not be given retroactive effect: (1) (restatement) if he is a habitual delinquent; or (2) if the law expressly provides prospectivity. For example, the Indeterminate Sentence Law is favorable to the accused. However, it shall be given a prospective effect because the law says so. Section 2 of the ISLAW provides that this Act shall nto apply to those already sentenced by final judgment at the time of approval of this Act.

Question 65

What are the kinds of repeal of penal laws?

Answer 65

There are three kinds of repeal in criminal law:
1. absolute repeal, which includes repeal without reenactment;
2. partial repeal or repeal with reenactment; and
3. general repeal

Question 66

What is an absolute repeal?

Answer 66

In an absolute repeal, the intention of the new law in totally repealing the old law is to decriminalize an act punishable under the old law. Hence, the subject act is not a crime anymore.

As an effect, the repeal deprives the court of jurisdiction to punish persons charged with violating the old penal law before its repeal. Nullum crimen nulla poena sine lege applies.

(note: i think this can be made expressly or when the new law fails to reenact the old law which defined the crime)

E.g. Repeal without reenactment –> In People v. Sindiong, the accused was charged with violating Section 1458 of the RAC. After that, the Tax Code repealed the RAC but did not reenact the provision penalizing the acts for which the accused is charged. This is an absolute repeal. The accused should be acquitted. The repealing law failed to wholly penalize the acts, which constituted the crime under the repealed law. This repeal deprives the courts of jurisdiction to punish persons charged with a violation of the repealed law.

Another example. Malicious prosecution was punishable under the old Spanish penal code. the RPC expressly repealed the old penal code but did not include malicious prosecution as a crime. This is an absolute repeal without reenactment

Question 67

What is a partial repeal?

Answer 67

In a partial repeal, the intention of the new law is not to decriminalize the act but merely to provide a new rule. This contemplates a situation where there is a repeal of the old but the old law punishing the act is reenacted under the new law.

As an effect, repeal with a reenactment of a penal provision of the old law does not deprive the courts of jurisdiction to punish persons charged with a violation of the old penal law before its repeal. Such repeal, even without a saving clause, will not destroy the criminal liability of hte accused.

Question 68

Differentiate the effect of an absolute repeal and partial repeal?

Answer 68

Effects of absolute repeal:
1. It will extinguish the criminal liability of the offender;
2. if there is already a pending case, it will cause the dismissal of such case for lack of jurisdiction to try and punish the accused; and
3. if the offender is already serving a sentence, it will cause his release or the remission of the imposed penalty.

Effects of partial repeal:
1. It will not extinguish the criminal liability of the offender;
2. If there is already a pending case, the court’s jurisdiction to try and punish the accused will be retained; and
3. If the offender is already serving a sentence, the accused will continue to serve his sentence; and
4. the new law shall be given retroactive effect if it is favorable; otherwise its application is prospective.

Question 69

What are general repeals?

Answer 69

A general repeal is a repeal of any inconsistent laws or provisions with the new law. The effect of the general repeal will depend on the intention of the new law.

E.g. P.D. No. 532 punishes piracy and highway robbery/brigandange. Under Section 5 of PD No. 532, pertinent portions of the RPC and all laws insofar as they are inconsistent with this Decree are repealed or modified.

Question 70

What are the constitutional limitations on the power of congress to enact penal laws?

Answer 70

1. Equal protection clause - the law must treat equally persons or properties similarly situated concerning the conferment of rights or imposition of obligations;
2. Due process - basic fairness and adequate justice. It requires that the law, in depriving ap erosn of his life, liberty, or property must be fair and reasonable and that a person, whose life, liberty, or property is at the stake of being deprived in a case, msut be allowed to be heard and afforded all rights to which he is entitled.
3. Non-imposition of cruel and unusual punishment or excessive fine (Note: death penalty is allowed. however death penalty is suspended under RA No. 9346)
4. Prohibition against bill of attainder - a bill of attainder is a legislation that inflicts punishment on an individual without a judicial trial. (allows the imposition of a sanction without a trial)
5. Prohibition on ex post facto law - an ex post facto law is a law that retroactively affects that right or condition of an accused who committed a crime before its effectivity (retroactive punishment)