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MODERN TREND OF CRIMINAL JUSTICE As incorporated in the proposed CODE OF CRIMES By GUILLERMO B. GUEVARA* As we all know, crimes afld criminals have pre-eminently engaged the attention of rulers and jurists since the early dawn of histc1·y. Some 4,000 years a.go, King Hammurabi through his "lex taliones" tried to solve the \'Cxing problem of crimes and criminals with the application of the famous formula of "an eye for an eye and a tooth for a tooth." I believe that all of us agree that the formula did not work, for we know that crimes and criminals have increased in geometrical progression with the population of the world. Since the "lex taliones" of Hammurabi up to the present, plenty of water passed under the bridge. Scores of theories regarding the Justification and purpose of penal laws have been expounded aud put i.nto practice; but so far, society a:;: a whole, feels that it is not sufficiently protected against the peJ'ennial onslaught of criminals. It would be too presumptuous nf me to engage your attention on the discussion of the merits or demerits of absolute, relative and mixed theories. I shall confine myself to expound, as briefly as poi;.. sible, the characteristics of the Jee.ding schools \\•l1ich now prevail in the juridical world, namely, the Classical School, the Positivist School and the Cl'iminal Politic. Briefly speaking, the first school or the Classical School, is eminently philosophical, juristic and dogmatic. It. attaches more importance to the crime, or to lhe act, than to the criminal or tu the actor itself. For this reason penalty under this theory, should be inflicted in proportion to the magnitude of the damage caused by the criminal. On the other hand, the Positivist School is eminently realistic and experimental. It considers the crime, not as a mere juridical entity or creation of the law, but rather a social or natural phenomenon. This being the case, the man-criminal, or the delinquent, and not the crime or the act, should be the main concern of the criminal law, under the tenets of this school. 'l'he classicist has chiefly in mind the attainment of retributive justice, through the infliction of punishment or penalty, which they consider as a payment due to society by whomsoever violates the penal law. The positivist vn the other hand, has as principal aim, the social defense, or the defense of society. It is not concerned whether the offense is avenged, or whether the offender i·eceives its due punishment. For the positivists the whole question boils down to whether or not the offender is dangerous or, very likely, will be a menace to society. That is why, instead of the classical penalty or retribution, the positivists have the security 11ieasure, The third school or the Criminal Politic, is a happy medium between the above two opposing camps. It believes in short detentiv(' 11enalty, without prejudi1=e to imposing- security measures upon dreadful criminals or socially dangerous riersons. As we all know, the present Revi8ed Penal Code of l!l30 i<;i patterned after the classical Spanish Code of 1870, a school of thought conceived originally by Cesare Boncsa, better known as Marquis cic Bacarria in 1764, and elevated to the highest degree of scientific perfection by that genial professor of Pissa, the eminent Dr. Francisco Carrara. The essence of this school, as we know, is that crime is a pure and simple fiction of law. In other words, there is no crime unless there is some Jaw defining and punishing it; that criminal responsibility can only be demanded or exacted, so long as the element of imputability exists; and finally, that penalty which is inflicted upon the perpetrators of a crime by way of retribution and moral coercion, must be provm·tionate to tlie harm or crime committed, nol only qua.ntitatively, but also q11,11litatively. When Professor Carrara bewildered the juridical world in 1850 with his scientific classification of penalties into graduated scales, and into different grades and periods, so that one particular kind of crime may only be punished with one specific set of penalties, mathematically measured in terms of years, months and days, very few thought then, perhaps, not even the most stubborn iconoclast, •Former Mem~r o( the Code CommiHion. AN APPRAISAL OF THE PROPOSED CODE OF CRIMES By AMBROSIO PADILLA* Fellow members of the Bar, Ry Executive Order No . .fS, the Code Commissivn was created for the purpose of "revising all. 'O!Xisting substantive laws or the Philippines and of codifying them in conformity with the customs, traditions and idiosyncracies of the Pi!ipino people and with modern trends in legif:la.tion and the progressiv1; principles of law.'' The Code Commission submitted a Civil Code project, which, with slight modifications, was approYed by Congress as Republic Act No. 386 known as the Civil Code of the Philippines. The same Code Commission sub. mitted its second project - the proposed Code of Crimes, which 1s i1itcnded to substitute for the Revised Penal Code. It is not my purpose today to discuss out· Civil Code, whose provisions I have attempted to expound and clarify in my work on Civil Law. But I intend, with your indulgence, to discuss with you the merits or demerits of the proposed criminal code. The members of the Code Com~ission, particularly its Chairman, have earnestly advocated for the prompt passage of this new Code, but no legislative action has been taken thereon Up ·to the present. It is, therefore, proper, that the members of the Bar should interest. themselves in appraising this new codification, because its enactment into law will vitally ;;i.ffect, favorably or ad\•ersely, the peace and order conditions in ou~· country and the apprehension, prosecution and punishment of violator!> of our penal laws. Our Revised Penal Code, Act. ~o. 38Hi as amended, was revised in 1930 based on the Spanish Penal Code of 1870 and took effect on January 1st, 1932. Our jurisprudence is rich in court decisions applying the provisions of our Revised Penal Code, which seem fully adequate to cope with the various forms of crime and all types of criminals. Dean Roscoe Pound once said: "Law must be stable, but .it cannot stand still." \Ve should, t.hercfore, welcome every improvement or advance towards more effective legislation. But any change should be for the better, for the Code Commission itself admits that the proposed changes should not be "merely for the sake of innovation." (p .. 43 of report). We do not have to stress originality, for the concept of crime, which arises from the evil nature of man, is as old as humanity itself. We need not adopt new "trends and objectives" merely for the sake of being modt!rn, unless they are sound and are in conformity with our own customs and traditions a.s a people. The Code Commission was entrusted with the duty to revise existing laws and codify them, not necessarily create new crimes. At the same time, we should not remain stagnant, for adherence to the static may mean not only a refusal to1 advance but an actual step backwards, I invite you, therefore, fellow members of the Bar, to discuss with me the vros and cons of the propod~d Code of Crimes to help crystalize legal opinion as to the wisdom of its adoption into, or rejection from, our penal system. The shift fro1n the da.ssical to the positivist - The first basic departure from the Revised Penal Code is the shift from the classical or juristic theory of penology to the positivist or realistic theory. Following the classical principle in our present Code, criminal responsibility i(I! founded on the actor's knowledge and free will. The positivist school, however, denies or minimizes the exercise of free volition alld considers the criminal as a victim of circumstances wl1ich predispose him to crime, for the Code Commission states that "criminality depends mostly on social factors, environment, education, economic conditions, and the inborn or hereditary character of the criminal himself." (p. 22 of report) The classical theory stresses the objective standard of crime and imposes a proportionate punishment therefor, but the positivist school considers the deed as secondary and the offender as primary, and provides for means of repression to protect society from the actor - to "forestall the social danger and to achieve social defense" (p. 3 of report), because it takes the view that "crime is essentialiy a social and natural phenomenon" (p. 3 of report). In other words, the classical view imposes responsibility for an act maliciously perpetrated or negligently performed ,while positivists view the criminal iiot so much an object * A.U •. Ll. B .. D.C.L. Profe.!<!or of Criminal Law 58 THE LAWYERS JOURNAL February 28, 1954 MODERN TREND OF CRIMINAL JUSTICE As incorporated in the proposed CODE OF CRIMES By GUILLERMO B. GUEVARA* As we all know, crimes afld criminals have pre-eminently engaged the attention of rulers and jurists since the early dawn of histc1·y. Some 4,000 years a.go, King Hammurabi through his "lex taliones" tried to solve the \'Cxing problem of crimes and criminals with the application of the famous formula of "an eye for an eye and a tooth for a tooth." I believe that all of us agree that the formula did not work, for we know that crimes and criminals have increased in geometrical progression with the population of the world. Since the "lex taliones" of Hammurabi up to the present, plenty of water passed under the bridge. Scores of theories regarding the Justification and purpose of penal laws have been expounded aud put i.nto practice; but so far, society a:;: a whole, feels that it is not sufficiently protected against the peJ'ennial onslaught of criminals. It would be too presumptuous nf me to engage your attention on the discussion of the merits or demerits of absolute, relative and mixed theories. I shall confine myself to expound, as briefly as poi;.. sible, the characteristics of the Jee.ding schools \\•l1ich now prevail in the juridical world, namely, the Classical School, the Positivist School and the Cl'iminal Politic. Briefly speaking, the first school or the Classical School, is eminently philosophical, juristic and dogmatic. It. attaches more importance to the crime, or to lhe act, than to the criminal or tu the actor itself. For this reason penalty under this theory, should be inflicted in proportion to the magnitude of the damage caused by the criminal. On the other hand, the Positivist School is eminently realistic and experimental. It considers the crime, not as a mere juridical entity or creation of the law, but rather a social or natural phenomenon. This being the case, the man-criminal, or the delinquent, and not the crime or the act, should be the main concern of the criminal law, under the tenets of this school. 'l'he classicist has chiefly in mind the attainment of retributive justice, through the infliction of punishment or penalty, which they consider as a payment due to society by whomsoever violates the penal law. The positivist vn the other hand, has as principal aim, the social defense, or the defense of society. It is not concerned whether the offense is avenged, or whether the offender i·eceives its due punishment. For the positivists the whole question boils down to whether or not the offender is dangerous or, very likely, will be a menace to society. That is why, instead of the classical penalty or retribution, the positivists have the security 11ieasure, The third school or the Criminal Politic, is a happy medium between the above two opposing camps. It believes in short detentiv(' 11enalty, without prejudi1=e to imposing- security measures upon dreadful criminals or socially dangerous riersons. As we all know, the present Revi8ed Penal Code of l!l30 i<;i patterned after the classical Spanish Code of 1870, a school of thought conceived originally by Cesare Boncsa, better known as Marquis cic Bacarria in 1764, and elevated to the highest degree of scientific perfection by that genial professor of Pissa, the eminent Dr. Francisco Carrara. The essence of this school, as we know, is that crime is a pure and simple fiction of law. In other words, there is no crime unless there is some Jaw defining and punishing it; that criminal responsibility can only be demanded or exacted, so long as the element of imputability exists; and finally, that penalty which is inflicted upon the perpetrators of a crime by way of retribution and moral coercion, must be provm·tionate to tlie harm or crime committed, nol only qua.ntitatively, but also q11,11litatively. When Professor Carrara bewildered the juridical world in 1850 with his scientific classification of penalties into graduated scales, and into different grades and periods, so that one particular kind of crime may only be punished with one specific set of penalties, mathematically measured in terms of years, months and days, very few thought then, perhaps, not even the most stubborn iconoclast, •Former Mem~r o( the Code CommiHion. AN APPRAISAL OF THE PROPOSED CODE OF CRIMES By AMBROSIO PADILLA* Fellow members of the Bar, Ry Executive Order No . .fS, the Code Commissivn was created for the purpose of "revising all. 'O!Xisting substantive laws or the Philippines and of codifying them in conformity with the customs, traditions and idiosyncracies of the Pi!ipino people and with modern trends in legif:la.tion and the progressiv1; principles of law.'' The Code Commission submitted a Civil Code project, which, with slight modifications, was approYed by Congress as Republic Act No. 386 known as the Civil Code of the Philippines. The same Code Commission sub. mitted its second project - the proposed Code of Crimes, which 1s i1itcnded to substitute for the Revised Penal Code. It is not my purpose today to discuss out· Civil Code, whose provisions I have attempted to expound and clarify in my work on Civil Law. But I intend, with your indulgence, to discuss with you the merits or demerits of the proposed criminal code. The members of the Code Com~ission, particularly its Chairman, have earnestly advocated for the prompt passage of this new Code, but no legislative action has been taken thereon Up ·to the present. It is, therefore, proper, that the members of the Bar should interest. themselves in appraising this new codification, because its enactment into law will vitally ;;i.ffect, favorably or ad\•ersely, the peace and order conditions in ou~· country and the apprehension, prosecution and punishment of violator!> of our penal laws. Our Revised Penal Code, Act. ~o. 38Hi as amended, was revised in 1930 based on the Spanish Penal Code of 1870 and took effect on January 1st, 1932. Our jurisprudence is rich in court decisions applying the provisions of our Revised Penal Code, which seem fully adequate to cope with the various forms of crime and all types of criminals. Dean Roscoe Pound once said: "Law must be stable, but .it cannot stand still." \Ve should, t.hercfore, welcome every improvement or advance towards more effective legislation. But any change should be for the better, for the Code Commission itself admits that the proposed changes should not be "merely for the sake of innovation." (p .. 43 of report). We do not have to stress originality, for the concept of crime, which arises from the evil nature of man, is as old as humanity itself. We need not adopt new "trends and objectives" merely for the sake of being modt!rn, unless they are sound and are in conformity with our own customs and traditions a.s a people. The Code Commission was entrusted with the duty to revise existing laws and codify them, not necessarily create new crimes. At the same time, we should not remain stagnant, for adherence to the static may mean not only a refusal to1 advance but an actual step backwards, I invite you, therefore, fellow members of the Bar, to discuss with me the vros and cons of the propod~d Code of Crimes to help crystalize legal opinion as to the wisdom of its adoption into, or rejection from, our penal system. The shift fro1n the da.ssical to the positivist - The first basic departure from the Revised Penal Code is the shift from the classical or juristic theory of penology to the positivist or realistic theory. Following the classical principle in our present Code, criminal responsibility i(I! founded on the actor's knowledge and free will. The positivist school, however, denies or minimizes the exercise of free volition alld considers the criminal as a victim of circumstances wl1ich predispose him to crime, for the Code Commission states that "criminality depends mostly on social factors, environment, education, economic conditions, and the inborn or hereditary character of the criminal himself." (p. 22 of report) The classical theory stresses the objective standard of crime and imposes a proportionate punishment therefor, but the positivist school considers the deed as secondary and the offender as primary, and provides for means of repression to protect society from the actor - to "forestall the social danger and to achieve social defense" (p. 3 of report), because it takes the view that "crime is essentialiy a social and natural phenomenon" (p. 3 of report). In other words, the classical view imposes responsibility for an act maliciously perpetrated or negligently performed ,while positivists view the criminal iiot so much an object * A.U •. Ll. B .. D.C.L. Profe.!<!or of Criminal Law 58 THE LAWYERS JOURNAL February 28, 1954 MODERN TREND ... that there could be any better system than the classical school. Amon~ the ccnfirmed bclicYcrs in the virtue of the Classical School, were Spanish and Filipino jurists, who, for the last 70 years_ , have been laboring undPr the impression that penalty, being retributive in nature, must bf' exflctly proportionate to the harm done, and for that reason, must be prefixed, determined and specif:c. But the scientific reputation .which the classical school gained was ::;oon shahn in the early 1800 with the publication of a b:i0k entitled "Crimes, its Causes and Remedies," written by an Italian physician, Dr. Ceasare Lambrose, wherein, for t he first time, the attention of the juridical world was arrested to the existence of 2. criminal type or delinquent man. It is not my purpose here t<J nrnke a lenghty exposition and anl\lysis of Dr. Lambrose's book. Suffice it t.o ~ay, that l1is ideas kindled the fertile minds of two other Italian masters, ProfessorSI Hafael Garofalo and Enrico Ferri, and eventually g<>.ve rise to the birth of a new, vigorous and realistic school of thought in criminal science, what is knowr. as the Positivist or experimental school. T hanks to the books of Lambrose on criminal type; to "Criminology" of Professor Garofalo, and to "Criminal Sociology" of Pi·ofessor Ferri, the juridical WC"rld has fallen heir to a precious legacy in the matter of treatment and approach to th0 eternal problem of crime and criminals. Thanks to these three evangelists of the gospel of Positivism, the juridical world has finally realized that society cannot be defended against the continuous onslaught of crimim1ls by the machine-like applications of pre-fixed penalties, and the ·excessive ui;e of abstract ·legal principles. What matters, in our fight aga.irist crime and criminals, is the study of the man-criminal himself, the selection of ways and mealls whereby a criminal would be deprived of an opportimity to commit crime, or if he has already committed any, that he may not be given a chance to repeat his anti-social activities. Since the gospel of Positivism is now widely spread over Eurupe and South American countries, and its tenets found expression ill the Pella! Codes of the majority of tl1e countries in both Continents, the Corle Commi3~ion felt that it would be recreant of its du\ies, sh0uld it fail to open its eyes to rc ... Jity, and accept obliging!:; the benefit of the experience of Europe and America. It 1s in this tho'ught and spirit that our proposed Code of Crimes has been conceived. The proposed Code of Crimes r\oes llot belong exclusively t(l any 'lf the two opposing schools. If at a\l, it belollgs to the third school, or to Criminal Politic, being the result of a compromise between the two fulldmnenta! and conflicting criteria. The Code Commission still believes that free will should be the basis of criminal responsibility, instead of the dreadfulness of the offender, as vigorously maintained by the Positivists. For this ret:son, the proposed Code, like the present Classical Code, declares in Articles 22 and 23, exempt from criminal liability those persons who are deprived of freedom, intelligence or intention. As a necessary consequence of the declaration, the prorosed Code had to H:cognizc in Article 24, as sufficient cause for diminishing or mitigating criminal responsibility, any circumstances which can or may hmder the exercise of the free will of the doe-r. With regard to the concept of penalty, the Commission ha s adopted a happy medium between the criterion that penalty is a 7J<mishmcnt or rctrilmtion for the wrollg d0ne, and the idea that it is n rncial defense. The proposed Code, for this reason, represses, with either fine or deprivation of liberty in the form of confinement or imprisonment, the commission of crimes. De:ith :orntence may also be inflicted in extreme cases, as a means of eliminating hopeless!y dangerous Jiersons. To Nase as much as possible all traces of punishmellt, the period of repression, which, will take the place of the penalties of the present Code, has k~en greatly shortened. The longest period of imprisonmer.t, wf.ich is heavy imprisonment, is from f) to 15 years, while the shortes~ (the confinement) is from 1 to 14 days. But, as I have stated, the repressions, l>c they confinement or imprisonment, are imposed for the sole purpose of satisfying the <·nds of justice, that is, for ethical reasons. Such repressions surely AN APPRAISAL ... of punishment or retribution but as a patient deserving of social consideratioll for reformation, to the end that society may be protected. The Code Commission has practically abandoned tl1e clas.!.;cal concept of retributive justice providing for punishmellt for crime freely executed, and has adopted instea.d the llew theory that repression of crime is "applied for social defense, to forsta\l social danger, to rehabilitate, cure or educate" the transgressors of criminal law cArt. 34). Should such a shift from the classical to the positivist theoi·y of criminal law be adopted aS a sound step forward and as being more in harmony with Filipino customs and traditions? It would be a dangerous theory - to minimize, if not negate, the exercise of free will based on knowledge of the actor that the act committed is a transgression of our penal law. In fact, such a theory would conflict with the stubborn fact of our own experience that a. criminal is not a desperate instrument of evil compelled by forces or circumstances beyond his control, but rather that he strays beyond the stdct and nanow path of good conduct kllowingly and voluntarily. For without knowledge or without free will an actor must be exempt from criminal liability <A1:t. 12, Revised Penal Code). 111ola in sc or 1nala prohibita - The proposed Code of Crimes colltains !)51 articles, as compa1·ed with the 367 articles of tire Revised Penal Code. The increase in size i3 due? to the considerable number of additional offenses. It has included offenses now pullishable under special laws. For example. Title VII dealing with "Crimes Against The P eople's Will" is co\·en:d ' by our Hevised Election Code. The new Code has penalized unfair lnhor practices (Arts. 506-507) which are covered under Republic Act No. 875, otherwise referred to as the Magna Carta of Labor. It has mcluded "Motor Vehicle Crimes" (Arts. 712-718) which fall under the Heviscd 11.fotor Vehicle Law tAct No. 3992 as amended) . The inquiry arises: Should the pellal code include in its provisions all reprehen!>ible acts that should be punishe<l or repressPd, or rather should they be limited to inherently wrongful acts which are commonly known as ma/a per sr:, a<; distinguished from mala prohibita? The penal code is the basic and fundamental law on crimes. It , must, therefore, be st<:ible alld should not vary with every .:hanging circumstances, bec<iuse the acts penafo;cd therein should be limite<l to evil acts which are such by the very nature of man as decreed by Divine Law and reflected to human reason as the Natural Law. Thus, to kill or to steal are mala per se - expressly prohibited by th(' Ten Commandments. They are illhcrently wrong at all times, in any place, and under eYery circumstance. No advance of civilization, no vestige of modernity, can ever justify such inherently evil <:icts. The proposed Code of C1·imes, however, co!1sidcrs that an act, criminal when committed, may subsequently lose "its dangerous or criminal character by reason of a change in the criminal law, or the alteration of the so<-ial or political situation" (Art Hi). The reason is that the proposed Code ~seeks to include offensr.s subject to special penal laws, for some acts, in themselves colorless, become transgressions of the law because of the peculiar purpose to be attained, dependent on certain prevailing circumstances. Thus, the possession of firearms is regulated by special laws (Sec. 2692, Amd. Code; Com. Act No. 56; Hep. Act No. 4l, and pcllalizes as a crime the illegal possession there0f, to control Joos~ firea1·ms a.nd discourage irresponsible gun-wielders. Similarly, our elcci:ion law forbids any pen:on to ellter a polling precinct with arms, regardless of the intention of the actor - whcthe:r or not the arm is intended to be used to coerce or intimidate voters. Likewise, the Motnr Vehicle Law penalizes a person who drives without a license. Obvimisly, however, the act of possessing a firearm, of entering a pr('cinct with arms, or dt'iving a car without a license, as the case may be, do not render saici acts intrinsically or inherently wrong. They are only prohibited acts, mid such prohibitions will contil:ue as long dS the law has an objective to achieve, but such pur - pose or objective may be lost by a change of circumstances. Jn such case, the p:·ohibited act would cease to be crimillal. The Cc;de CCJmmission should not have included in the proposed Code of Crimt,., - the basic or funcinm ental Jaw on crimes - violations of special laws, which arc not mala in se but only 11wla prohi~ita. The proposed Code ')f Crimes ha& included many misdemeanors which should be the proper subjects of municipal ordlnances. Tims, F ebruary 28, l!J54 THE LAWYERS JOURNAL 59 MODERN TREND . will not protect the community from the nefarious and anti-social activities of certain types of criminals whom the! Code classifies as ·•socially dangerous person." For this type of offenders, the pr~~ posed Code reserves, in addition to the conventional repression, t lle security measures, which consist in the inlernment of the offender for an indefinite period, in some agricultural colony or labor esta. blishmcnt. • Under the provisions of Article 109 of the proposed Code of Crimes, the above-described security measure may be imposed in two instances: firstly, upon any person who hu.s been sentenced to medium imprisonment or longer (from 3 years up); and secondly, upon any offender, even though sentenced to a shorter term, provided the Court finds in the offender, a "certain morbid disposition, congenital or acquired by habit, which by destroying or enervating the inhibitory r:cmtrol, favors the inclination to commit a crime." <Art. 107). Under the provisions of the proposed Code, the internmen,t of socially de.ngervus pe1·sons shall nol t~rminat~ until the courts, upon report of a competent board of psychiatrists and technicians in penology shall be fully convinced that the internee is no longer socially dangerous. It is believed that an indett!rminate security imposed upon hardened or professional criminals \Viii be a far better safeguard to society than the present pre-fixed penalties of our present classical code. With an indefinite internment in a labor establishment or agricultural colony, c1 iminals of the> type of Parulan, Dick-a-do, and others, could not have caused havoc to society. It is the considered cpinion of the Commission that the security measures of the proposed Code of Crimes, if rightly enforced, will reduce to the m inimum the risk of the community from anti-social activities of 11rofessional and dan~erous crimin'lls. Another innovation of decidedly Positivistic tendency is the pro\'ision of Article 17, in connection with Article 62 oi the proposed Code, which confers upon the Court the power to repress, either with the repression one degree lcwer, or the same repression intended for rite cons11ni.mated oj {01.;:;e, m1y fru£trated, or attempted crime, prOposal to commit an offense, bearing in mind the nature of the crime, the means and ways of the perpetration thereof, the intensity of tpe cl"imina.l intent, the extent of the resulting injury, and the personal antecedents of the actor. The. p1·esent critel"ion of the c.lassical school of lowering always bv one 1)1' two Ucgrees the pen.'l.lty for the frustrated or attempted c;·;mc, ,\ ithLJut any regard to th6 persongl antecedents of the doer, the nature of the offense, the intensity of criminal intent, de .. does not seem to be som1d. Few, if ever, will be convinced, that a hardened and professional criminal who has put into execution all mecns within his command to rob and murder his Yictim, but only out of sheer luck of the victim, the bullet missed him, should deserve less condemnatio11 or less repressive measure, than an occasional cJ"iminal who hapnen s to consummate the same offense. T he right and sensible criterion, therefore, is not to base. neccssa.rily upon the degree of the consumm~.tion c.f the offeuse or the harm done, the repression to Oe impo!<.ecl tipon a doer, hut rather upon the drcumstances already mentioned. Another sti·iking innovatil)n in your proposed Code is the cc.nversion of acccssoryship afler the fact (enc1onliri1niento in Spanish), into the category of an inde11endent and .sep::irate crime. Under our present classical code, as we all know, an accessory after the fact is one who helps in the flight of a murderer, or conceals the body or instrument of a crime, or knowingly hides or receives stolen property. Under th1'): present set-up, the respo11s!bility of an accessory after the fact is subordinated to that of the principal; so that, if the principal is acquitted or not prosecuted, the accessory after tlie fact, no matter how conclusive is the evidence against him, cannot be punished. The flaw of our present system is self-evident. If the proposed Code of Crimes is· finally approved by Congress, the hiding, concealing or receiving of st(')en prope1·ty shall be one kind of crime against property :i.nd the abdting in the escape of a crimilial, destroying the body or the instl'uments of the crime. or the wiping out of traces of the same, shall be another kind of crime against the administration of justice. These crimes can be pro;:;ecuted independently, and without 1·egard to the prosecution or conviction of the thief, in the ca~e of !:'tolen prop_eriy, nor of the criminal to wh9m help was given, in the latter cases. AN APPRAISAL . social gatherings between 2:00 and 5:00 in the morning (Art. 75G), dancing or music <Art. 757), or sale of liquor <Art. 900J between said hours, should be covered by municipal ordinances. Even smoking i11 a first~class theatre <Art. 921.) sho11ld not be declared a misdemeanor under the penal code. The proposed Code of C1·imes :'llso penalizes violations of Civil L<.w provisions which should remain within the realm of Civil Law. In seeking greatei· protection for fami ly solidarity, it would p(malizc alienation of affection between the husband and the wife (Art. Gl6), the disturbance of family relations by any intrigue (Art. 617), collusion for legal s1<pe.ration or annulment of marriage ' Art. 619). dcpr:vl.!.tion of the legitime of compulsory heirs lArt. G26), or i·efusa! to discuss compromise of a civil litigation among membe>rs of a family <Art. G35). nut not every act which involves a ''iolation or infringement of a civil 1·ight should give l'ise to criminal prosecution, since liability for civil damages would be ::dequatc relief. Art. 624 penalizes & lessor who fails to cancel a lease of his house or building after know. ing that the building is being used hr prostitution. Art. 852 punishes a les;;or who wilfully violates the terms of a lease by refusing or failing to furnish a service 01· facility 3gt·eed upon. Likewise, a lessee who wilfully abandons the premises without first havi11g· settled his rental indebtedness to the !Csso1· commits a misdemeanor under Art. 853 which would .:.mount to sanctioning imprisonment for (lebt. These are pui·ely civil matters which affect the private r ights of the COJltl'a.cting parties. Neither the ''iolation by the lessor nor by the lessee should give rise to a c\"iminnl offense, unless such violation would constitute a specific crime by itself. 8itnifai· 7Jrovisions ·T here are some pJ"Ovisions which are pl"esented as 11ew, but are essentially a reiteration of the prevailing rule. Thus, when a criminal :Jct is pei·petrnted by a legal entity which, as a jul"idical lJerson, can not commit_a c1·ime, the persons responsi ble therefor are the pi·esiJent, manager or director, either as principals or for criminal negligence (Art. 30). A rticle 178 imposes special subsidiary liability upon employers engaged in nny kind of business or industry for the payment of the iine imposed on their employres. This is similar to the subsidiary liability now p1ovided in Art. 103 of the Revised Penal Co(k. Article 180 imposes solidary liabi lity on principal and accompli"Ces. The same rule is prescribed in Article 110 of the Revised Code. The proposed Code considers accessot"yship as a separate crime (p. 1 .~ of report), but the legal effect is the same bcc:lUse the accessory receives a penalty two degrees lower than the principal in a consummated offensr. The proposed Code has abolished the concept of quasi-offer.se, or a crime committed thru negligence. T he 2.bolition, hnwever, is more n1 1parent than real, because the same concept remains and is called culpable or without criminal intent, when the injurious or dangerous result takes place in consequence of neglipence, recklf'ssncss or Jack of skill <Art. 14). Moreover, crime thrn negligence is repressed Jowci· by one or two categories prescribed fo r the intentional crime (n. 28 of report). · G1J()d im1oi;ations - 1'he1·e are, howevl'r, some new provision£ in the proposed Code which deserve favorable study and adoption. Art. i.145 is a provision against Jishoncst zccumulation of wealth, so that property grossly in excCss .:if the normal and probable earnings of a public official will be: foJ"fcitcd to, and declared propei·ty of. the 8tatc. This will be ai1 effective deterrent against so much graft and corrupt.io1.1 in government 2.ml its subsidiary corporations, where public service and the general welfare have been sacrificed for personal material advantages. A i·t. 82~ penalizes nepotism anrf Art. 824 thf' evasion of the law against nepvtism, wl1ich arc good provisions in view of the prevalent custom of 0 11t· officialdom. Art. 44G limits the provision against self-incrimination and ·demands the testimony or productio11 of books and papers in an investigation and trial. The same rule is provided in Art. 342 where a J>erson, duly ~ummoned to testify before any court 01· congressional committee, slwll not be excused from testifying or producing docu;ments, although he shall 11ot be prosecuted for 1!.ny statement or admission he might make or because of such document. Art. 194 suLjects a person who attempts to commit suicide to curative security measures, includir.g detention in 1. hospital fo r lrt!atmrnt. This is a reform to Art. 253 of the Revised Penal Code, GO TH E LAWYERS JOUHNAL February 28, l!J5; MODERN TREND ... The mechanit>m of application of penalty or reprc-ssion has been greatly simplified. The principal :repressions consist, as I Jiave already stated, of deprivation of liberty and fine. Death penalty has been preserved, but it can only be impos<!d in extreme cases. 'Vith the limitations imposed by the proposed Code, it can be sa.fely stated that death penalty has been pradically aboiished. The deprivation of liberty is classified into: life imprisonment which at most lasts 25 years; heavy imprisonment, from 9 to 15 years; medium imprisonment from 3 to 8 years; light imprisonment from 6 months to 3 years; confinement from 15 days to 6 months; and rest1·aint. from 1 to 14 days. Accordin,1t to the pr'Jvisions flf Article 57, the repression prescribed by the -Code shall be imposed upon the principal of the crime. The presence of modifying circumstances in the commission of the crime will have the effect of imposing the repression either in the lower half, or in the upper half, depending upon whether circumstances arc mitigating or aggravating. Thus, if the penalty . prescribed for the Cl'ime is heavy impriso?unent, (from~ to 15 yean:), n.nd there is or there are one or two m!tigating circumstances, the jnrlge will have full power to impose any penalty ranging from 9 years and one day to 12 years; and conversely, if there is or there are only one or two aggravating ci!·cumstances, the judge can impose. anywhere between 12 years and one day to 15 years. If there are no modifying circumstances, or the existing one Jffsets each other, the court would be justified in impasing the penalty in the neighborhood of 12 years. 1obreover, under Article 73 "every di\'iSible repression shall be divided into the upper half and the lower half. Within either half, the Court shall impose that repression which in its sound discrdion shall best accomplish the purpo:;;es of rcpres:;ion as enunciated in Article 34 of this Code, after considering the nature and number, if any, of the mitigating or a~·gravating circum~tances, !!.nd the actor's social and family environment, educ2.tion, previous conduct, habits, economic condition and other personal factors." It is thus seen that rather than mathematic:il sub-division and fractions which characteriie thi;: mechanism of the classical schooi, wh11t the judge will need in the application of the proposed Code,· if finally approved, would be profound knowledge of human nature and psychology. · The condititmal sentence is another step forward in the proposed Code. Under it, a judge has ample discretion to suspend a senten<'e of conviction when the accused is a first ofiender, and the term of tl~e sentence does not exceed one )"ear, provided the accused fully indemnifies the ·famage, if any, inflicted upon the victim. Should the convict ubserve good conduct <luring· 5 months, if he does not commit any offeJLse during said period, the sentence shall totslly prescribe; otherwise it will be enforced. If the proposf!d Code is approved, fines shall have the same effect upon the rich and the poor. It will be truly democratic; unlike what happens under the present set-u11, when fine is painless, nay, insensibie, as far as the moneyed class is Mncerned. Fine shall be imposer!, not in terms of pesos, but in terms of days of earning. An executive, for in£tance, with an i~come of l"300 a day, who is sentenced, siJ.e by side wi1h a laborer earning P5 a day, to suffer 5 days of earning each, will suffer exa.ctly the same pinch or burden as the latter; for this Pl,500 which is the equivalent ·of his 5 days, has the same weight or value of the t"25 to the laborer. Jn line with the criterion that repression is more of a sanction and sC1cial defense than a punishment, the proposed Code has provided for pre-delictual security measure. Under the provision of Article 108, a person ma.y be judicially declared dangerous, and then be subjected to security measures described even if he has r.ot been prosecuted for any specific crime when he shows any symptoms, evidences 01• manifestationi; of habitual rowdism and ruffianism. With this provision it is expected that mauy holdups, kidnappings, and murders can be prevented. The police records and investigations of holdups, kidneppings, and murders invariably show that they have been committed by profcssio11al ruffians, police characters or "butaiigeros" in loral parlance. Bec.'.1use ~f the absence of a provision regarding predelictual Sf!curity measures in the present Code, our law enforcement ugencies have been absolutely helpless to neutrelize the anti-social activities of professional !'owdies or "butaiignos," unless they are surprised "infragranti," AN APPRAISAL ... which penalizes a person who assists another to commit suicide- but does not prescribe a penalty for the person so attempting. In view of the difficulty in prosecuting arson suspects, Art. G89 raises a JJrim,1t fncie presumption of guilt in some prosecutions for arson. This good provision is not in violation of the presumption of innocence becaufle the Revised Penal Code itself contains prima facie presumptions of guilt. Art. 6G7 provides for specfo.l or additional aggravating circumstances in theft. This is much more · satisfactory than the pre6ent provision on qualified theft, which limits the enumeration of property to "motor vehicle, mail matter, large cattle, coconuts taken from a plantation OF fish taken from a fishpond" (Art. 310, Revised Penal Code). Innovations subject to criticisms - There are, however, many new provisions in the proposed Code of Crimes, or changes advocated, which deserve careful study and scrutiny. (a) Attempted vs. FrustratedThe new Code proposes to abolish the distinction between attempteci and frustrated crimes (Art. 6, Revised Per.al Code). On the other hand, it imposes repression upon the principal of an attempted crime, or upon the conspirators, or upon the proponent of a crime <Art. 62). Under the Revised Penal Code conspiracy and proposal to commit I\ felony are not punishable, except in specific cases where the law specially provides a penalty lArt. 8, R.P.C.). There seems to be no 'valid reason for the elimination of the different stages of execution, for the differe!lces between consummated, frustrated and attempted lArt. 6, R.P.C.l are clear and real. It is true that in crimes like bribery, which is consummated by mere agreement, there is no frustrnted stage; and in crimes like abduction, adultery or arson, the distinction between frustrated and attempted is rather difficult. But such difficulty which obtains only in few particular felonies would not justify total abolition, for, certainly, an offender who merely commences the c0mmission of a felony directly by overt acts, and does not perform all the acts of execution should not be held to the same degree or responsibility as the offender who performs all the acts of exE"cution which should proJuce the felony as a consequl'nce Lo\.rt. 6, R.P.C.l. Moreover, why should conspiracy and proposal be m&de punishable when the offenders or offender have not translated their intention into positive acts falling within the purview of tl'.e penal law? While th£' moral law does 'not wait for external acti; and seeks to control m:tn's innermost thoughts as violative of the moral code, the same standard can not be applied to felonies falling under our pen:o-.l laws. Again, we can not rely on the subjective standard hut must apply the objective test. Even the present law on impossible crime (Art. 4, par. 2, R.P.C.l is limited to the performance of an act which would be an offense against persons or property. (J:.) Socially drmgcrous without ctnnmitting spec,ific crime - Article 5G1 of t.he proposed Cod£' is a strange provision. For d - though a person may not have committed any specific crime, he could be declared socially d?.ngerous and be subject to curative security measures and may therefore be confined or hospitalized until such time as he is 110 longer dangerous to society (Art. 562). Article 108 likewise provides that a person, e\'Cll if he has not teen prosecuted for a specific crime, may be subjected to detentive security measures lArt. 114), when he shows anY symptoms, evidences 01· manifestations of habitual rowdyism or ruffianism (Art. 209). If the Code Commission recognizes the basic prir.ciple of nulla poena sine lege, why should a person be deprived of his libe1ty and subjected to curative or detentive security measures on vague and uncertain manifestations that he may be socially dangerous, if he has not in fact performed an overt act constituting a specific crime? The proposed Code, following it;; purpose of repression, which is for sociai defense, to forestall social danger against possible transgressors of criminal law <Art. 34), considers the "actor's social and family environment, education, previous conduct, habits, economic condition and other perS-Onal factors" (Art. 73l, and would impose detentive security measures which "shall last until the court has pronounced that the subject is no longer S-Ocially dangerous" <Art. 114). Hence, the Codf! authorizes indflfinite detention.even for gun-wielders or rowJles (Arts. 108 and 209J. And even if a convict has already served the maximum of his term of imprisonment, he may not be February 28, 1954 THE LAWYERS JOURNAL 61 MODERN TREND ... The above provisions a~e the hcst answer to the persistent cla- civilized world has been trying to produce for the last four thom:anrl mor of the community for pre\•entive measures against the inuninent years some penal code which would deal a death blow to crime and and probable onslaught of professional gangsters. After all an ounce criminals. But little or uo progl'eSs at all has been achieved to of prevention is worth more than a pound of cure. obtain the desired goal. Another striking innovation of the proposed Code is the extra- I do not, I cannot claim, tha.t the proposed Code would serve the territorial effect given to its provisions. Our present concept of cri- purpose of a miraculous panacea to all of our social and moral ills. minal Jaw is exceedingly provincial. With the exception of crimes Hut-I venture to say in all modesty that it tries to embody the most com,mitted on board our ships and men of war, while navigating on progressive principles of the 1ienal science. high seas or on foreign territory, and crimes committed by public The bill of rights in our Constitutfon as well as in the Federal officials a.broad in connection with the performance of their official Constitution of the United States; and even the Magna Carta of the dutiPs, or falsification and forgery of our securities and coJns, the human rights, the famous Declaration of the Rights of Men proprovisions of our present Code are effective only within the Philip- claimed by the French Revolution, are all wonderful, but onesided, pine Republic: Under the proposed Code, any serious crime committed documents. The authors and framers of these immortal documents abroad by ·nationals or even by foreigners when the victim is a na- huve only specialized and endeavored to undeJ"take the defense of the tional or the State, may be prosecuted hel"e under certain conditions. rights of men, the rights of individual persons; but none of them has Th'ese are the salient features of the ground work of the new given serious thought to the defense of the rights of society. The Code. The catalog of specific crimes has been greatly enriched S'l proposed Code of Crimes, submitted to your consideration, is an en.. as to cover all conceivable forms of criminality and inunorality. Suf- cleavor to fill the gap. fice it to say that the proposed Code is 3 times longer than the pre- The Committee, I am sure, will find, after a mature consideration sent one. · of the Book I of the proposed Code, that, if the same is approved, It would be too presumptuous of anybody to claim that an ideal society will in the future find itself on an equal footing with the or perfect code ce.n be drafted. As I said from the beginning, the individual person, as far as_ protection of the rights arc concerned. AN APPRAISAL ... certificate from the health authorities that he is not suffering from treason difficult. any of the -diseases therein mentioned, such as tuberculosis, cholera Art. 435, which prohibits any public officer from accepting the or dysentery. This article makes marriage not only difficult but also construction of any monument in his honor or the naming of any 2.s constituting an offense. The previous ·article <Art. 572) makes co- public sh"eet or building, would 1·ender many of our political leaders habitatio!l without marriage likewise an offense. Although eugenics subject to confinement. may justify the postponement of ma.rriage when one of the parties ll e s 1t tn e - is not physically fit, a marriage ceremony should never be made a I have attempted to bring to your attention some meritorious propenal offense, because marriage is not only a social institution but a visions of the proposed Code of Crimes which could be adopted under divine sacrament, which the St.ate may pe1·haps regulate but can not special laws or by way of amendatvry acts to the present Revised Nntrol, much less penalize. Penal Code. J have likewise invited attention to ma.ny provisions (g) Death. by spo11se under exceptWnnl circ1lmst1i,11ces - which may be unsatisfactory, if not totally objectionable. The good Art. 247 of the Revised Penal Code is practically an excmptirrg features may be adopted without enacting the proposed Code into circumsta.nce for any spouse who surprises the other in the act statute, but its deleterious provisions can hardly be avoided without of committing sexua!'intercourse with another. Art. 185 of the 1n·o- positive action to reject its enactment into law. posed Code would change the principle and provide for a repression The enactment of Republic Act No. 386 as the New Civil Code of with imprisonment, on the ground that "only God, and in extr~me the Philippines has not met with th~ universal approbation of the cases the State, may dispose of human life" (p. 59 of report). Verily, Bench and the Bu. In fact, it has met with some serious criticisms. no man but only God has the right over life and death, but when an If the proposed Code of Crimes be recommended for enactment into offender commits a grievous act of aggression, such as an attack law greater criticism will ensue, for it constitutes a drastic departure on one's life or against family honor, the killing of the aggt"essor i<- from the basic philosophy of our penal law a.nd its new trends and justified, because the offender has thus fodeited his right to his own objectives are hardly in consonance with the customs and traditions life. Otherwise, we would have no basis for the justifying cil'cums- of the Filipino {Jeoplc. tanceR of self-defense, defense of relative und of stranger <Art. 11, Recommendations - pars. 1, 2 and 3, R.P.C.). The new Code wants to give greater pro- This app1·aisal of the proposed Code of Crimes would remain tection to family solidarity and yet it would deprive the spouse of academic if no suggestions or recommendations arc advanced. Hence, his or her right, under exceptional circumstances, to kill the very I ta.kc the liberty of submitting the following: intruder who ha.s assaulted and m1dermi11ed the sacred foundation 1. The Code Commission should iiow be abolished, for 110 person of family solidarity. or group ~f persons can claim such mastery of aU branches of subs1'he sacred rCSfiect for human life which the proposed Code pro- tantive law as to constitute a vermanent body to codify various laws, fesses is not found in Art. 193 on mei·cy killing, which practically such as civil, penal, commercial, labor, taxation, a.nd other branches allows a person to cause the death of another at the latter's request of the Jaw., Congress may always a\·a.il itself of the help and services through mercy or pity. Neither is human life or personality upheld of tried men in their respective fields. Thus, if a tax code be recomunder Art. 203, which allows alx>rtion of the foetus to save t'he life mended, experts on taxation should form the commission to draft of the mother. such legislation. If a. labor code is ;:;.dvisable, another group of labor The proposed Code has ma.de the penal law so strict that it has experts coming from management and labor, and other economic facrisen to the level of a moral code. And yet, some of its provisions have tors, shC'uld be considered in the composition of such committee. relaxed the present rules. Thus, malversation (Art. 217, R.P.C.) in.. 2. Remedial measures should be studied tu allow the State, includes under the concept of public funds Red Cross, Anti-Tubercu- eluding the offenJed party, to appeal from a judgment of acquittal Josis and Boy Scout funds, and such funds arc extended to property or dismissal in a criminal case, for such appellate review in meritoattachcd, Seized or deposited by public authority even if such pro- ricus cases would constitute the ruost effective restraint against erperty belongs to a private individual (Art. 222, R.P.C.). Art. 444 of roneous or arbitrary actuations of inferior courts, and such appeal the propof;ed Code, however. provides that money or property col- would not strictly violate the constitutional provision against double lected or raised by public volunta.ry contl"ibution for any civic, charita- jeopardy. ble, religious, educational, political, or recreational purp0se is not. 3. Some good provisions in the proposed Code of Crimes should deemed or included as public funds or pro;ierty. Why the change? be adopted under special law!' or as amendments to the Revised Likewise, the law on treason CA1·t. 114, R.P.C.) requires evidence Penal Code. based on the testimony of at least two witnesses to the same overt 4. The new codification would not be a decisive step forward act. The new Code proposes to relax the rule by inserting the phrase towards a mon· Mable and satisfactory Pcnol Code, and accordingjy "or different overt acts", a.11d the reason given is that the present Congress should not be persuaded to enact into law this project of the rule makes_it difficult for the pro:oecution to secure a conviction for Code of Crimes as our new Penal Code. February 28, 1954 THE LAWYEH$ JOURNAL 63

Date

1954

Rights