Arno V. Sanidad for Benjamin de Vera.
Efren H. Mercado for Marco Palo.
I dissent. I would like to point out that I was originally assigned to write the opinion for the majority in Misolas vs. Panga,1 My opinion sought to strike down Presidential Decree No. 1866 for three reasons: (1) it is a bill of attainder because it presumes the accused to be guilty, as well, of the crime of subversion, in addition to "illegal possession;" (2) it is vague; and (3) it violates the rule against double jeopardy. I take the liberty in restating that opinion, as I originally wrote it:
The petitioner, a detained prisoner, prays that the Court declare "the third paragraph of Section 1 of Presidential Decree No. 1866"1 unconstitutional in this petition for certiorari.
The petitioner was apprehended by elements of the Philippine Constabulary (244th PC Company) on August 8, 1987, at Forest Village, Barangay Tagbobog, Pili, Camarines Sur. He was arrested along with two others, Identified only as Ka Donna and Ka Menchie, following "information"2 reaching the PC headquarters at Naga City that three "subversive terrorists"3 were sojourning at an "underground house"4 at Forest Village. On further information submitted by "neighbors",5 that "the real owner (of the house) is in Binanauanan, Pili and that the occupants ... were strangers,"6 the Constabulary through a raiding team, led a search of the house. Their account is as follows: "We searched the house and found among their personal belongings, voluminous subversive documents and one gauge shotgun, commonly as 'sumpak' with serial number 221534 and four (4) live ammos for the same firearm."7 It was added that "we found inside three persons one (1) male and two (2) female but the two female [sic] escaped."8 Thereafter, the petitioner was brought to Naga City for questioning.
On August 10, 1987, the Constabulary filed a complaint with the Provincial Fiscal. On September 4, 1987, or twenty-six days after the petitioner's arrest without a warrant, the Fiscal filed the corresponding information, for violation of the third paragraph, of Section 1, of Presidential Decree No. 1866. But it was only on September 11, 1987, or more than one month after his warrantless apprehension, that a warrant was issued, and bail for his provisional liberty fixed, in the sum of P170,000.00. No bail apparently has been posted up to now because he cannot afford it. As a matter of fact, the petitioner is represented by a counsel de oficio and has been allowed by the Court to litigate as a pauper.
On September 30, 1987, the lower court arraigned the petitioner, who entered a plea of not guilty. On October 14, 1987, he filed a "Motion to Withdraw Plea." Thereupon, he moved to quash the information, on the grounds as follows: "(1) That the facts charged do not constitute an offense because the Information does not charge the proper offense;10 and (2) That the court trying the case had no jurisdiction over the person of the accused because of violations of his constitutional rights."11
On January 7, 1988, the court a quo issued an order denying quashal. On February 15, 1988, reconsideration was denied.
As indicated at the outset, the validity of certain provisions of Presidential Decree No. 1866 is primarily questioned in this petition.
Presidential Decree No. 1866, "CODIFYING 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, AMMUNITIONS OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES," provides in its Section 1 as follows:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition 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.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death shall be imposed.
If the violation if 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 of 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.
The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor.12
It should be noted that under paragraph 3, of Section 3, punishing "unlawful manufacture, sales, acquisition, disposition or possession of explosives," the penalty is likewise death if the offense is committed "in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection or subversion." We quote:
SEC. 3 Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Explosives. — The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to "pillbox bombs," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person.
Any person who commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons shall be punished with the penalty of death.
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 of 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 explosives 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.13
The petitioner has been charged under the third paragraph of Section 1, that is, illegal possession of a firearm and ammunition "in furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion." He is not being held for rebellion, insurrection, or subversion, the offenses he precisely maintains are the proper offenses (specifically, subversion).
The Decree does not punish "rebellion, insurrection or subversion" as distinct crimes because rebellion, insurrection, and subversion are offenses already penalized by existing statutes (Article 134 and 135 of the Revised Penal Code with respect to rebellion or insurrection; Republic Act No. 1700 as amended by Executive Orders Nos.167 and 276 with respect to subversion). Neither can the Decree be said to be an amendment to the law, as "amendment" is legally defined, meaning to say, an "alternation or charge"14 for the purpose of "removing defects or faults"15 in the statute. It is not necessarily tantamount to a "repeal" either, because, so it is said, while "an amendment keeps alive ... a 'repeal' destroys."16
The Court sees nothing in the Decree that would convey this impression, i.e., to amend, much less repeal, existing legal provisions on national security and public order. By its explicit and express language, what it makes punishable is the unlawful manufacture, acquisition, disposition, possession of, and dealing in, firearms and armaments without proper legal sanction, and so makes it punishable by reclusion perpetua,17 with the qualification that where such a prohibited act is committed in furtherance of, or incident to, or in connection with rebellion, insurrection, or subversion offenses against public order and national security, the penalty is increased to death as if rebellion, insurrection, or subversion were aggravating circumstances.18
In objecting to the Decree, the petitioner says that it cannot validly consider rebellion, insurrection, or subversion as an attendant circumstance to qualify the offense of "illegal possession" because, precisely "illegal possession" absorbed by rebellion, etc., on the strength of the Court's rulings in People vs. Hernandez,19 People vs. Geronimo,20 People vs. Rodriguez,21 and People vs. Lava,22 As a consequence, so he avers, "illegal possession" when committed "in furtherance of rebellion, etc." constitutes a non-offense.
The Court finds no necessity in belaboring these objections since the Decree must, in any event, be stricken down for being plainly, a bill of attainder and an offense against due process.
A bill of attainder has been defined as "a legislative act which inflicts punishment without trial."23 It is expressly prohibited by the Constitution,24 but other than by explicit constitutional mandate, it is essentially repugnant to fundamentals of republicanism enshrined in the Charter. It has thus been said:
Its essence is the substitution of a legislative for a judicial determination of guilt. The constitutional ban against bills of attainder serves to implement the principle of separation of powers by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function. History in perspective, bills of attainder were employed to suppress unpopular causes and political minorities, and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class, the imposition of a burden on it, and a legislative intent, suffice to stigmatize a statute as a bill of attainder.25
As Ferrer indicates, the ban on bills of attainder was meant to implement the principle of separation of powers "by confining legislatures to rule-making and thereby forestalling legislative usurpation of the judicial function."26 The term originally applied, however, Congress prescribing the death penalty to specific individuals or groups, "attaining" the victims, and providing for disinheritance. Where the statute provides for lesser penalties, it is called a "bill of pains and penalties."27 In Cummings vs. Missouri,28 the United States Supreme Court held that the prohibition covers both bills of attainder and bills of pains and penalties.
The concept of bills of attainder is said to be of American origin,29 although the Biak-na-Bato Constitution's injunction against imprisonment "except by virtue of judgment passed by a court of competent authority"30 vaguely resembled present-day constitutional aversion to bills of attainder. (Under the Malolos Constitution, it was likewise provided that "[n]o Filipino can become a prisoner unless by virtue of the mandate of a competent judge."31 It was in Mckinley's so-called instructions to the Second Philippine Commission, however, that the ban was specially addressed: "Upon every division and branch of the Government of the Philippines. ... must be imposed these inviolable rules ... that no bill of attainder or ex post facto law shall be passed ..."32 Since, then, the prohibition has devolved over from one organic act to another (Philippine Bill of 1902, Jones Law of 1916, the 1935 Constitution).
That bills of attainder are repulsive to the doctrine of separation of powers, as they are thought to be today, marks actually a departure from early opinions about the underlying reasons behind the injunction of the Constitution. Essentially, the inhibition was a response to acts of oppression and arbitrariness of tyrannies of the ancien regime by simple royal decree, which were central to American experience. Thus, in Ferrer, this Court spoke of the use of bills of attainder "to suppress unpopular causes and political minorities,"33 which, pertinently, would have made the ban, based on our own experiences under an authoritarian leadership and as a former colony, relevant to our jurisdiction in spite of its (the ban's) distinction as a relic from a colonial past.
Beginning with U.S. vs. Brown,34 however, the Supreme Court of the United States declared that the proscription serves "as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply — trial by legislature."35 It provided a new tack to constitutional law analysis because in that event, the presence of punishment would no longer have been the essence of a bill of attainder but rather, because it would have allowed the legislature to impinge on judicial prerogatives. According to one authority: "Critically, the Supreme Court had shifted its focus from punishment to trial, and the shift implied that the ban on bills of attainder was a limitation upon the legislative process rather than simply upon legislative policies."36
Three reasons are said to underlie the "shift": (1) The need to institutionalize the doctrine in the Constitution by "fractionalizing" power;37 (2) The need to make the adjudicating process strictly the judge's concern, rather than the lawmaker's, because the legislature, as a political body, is swayed by popular opinions for which it cannot be said to be "impartial," which a judge is presumed to be; and (3) The concern to make the legislature disclose its purposes by leaving the construction of its acts to a separate body, which a bill of attainder cannot achieve as it covers both rule and application at the same time.38
However it is interpreted, the notion of bills of attainder in this jurisdiction had not been as specifically circumscribed, and has been in fact invoked in questions involving the equal protection, due process, and presumption of innocence clauses of the Charter. Thus, in Dumlao vs. COMELEC,39 this Court struck down Section 4 of Batas Blg. 52, which had barred individuals from running in the local elections of 1980, "who ha[ve] committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes ... provided, that a judgment of convictions for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact." We invalidated the provision for repugnancy to the presumption-of-innocence clause of the Constitution:
x x x x x x x x x
Explicit is the constitutional provision, that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code).40
In his concurrence, the Chief Justice Enrique Fernando further provides:
x x x x x x x x x
... I would add that such a provision is moreover tainted with arbitrariness and therefore is violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. vs. Beson, is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense of justice." As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full hearing on the charge against him and thus effectively negate the opportunity of an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a military tribunal, saddled as he is with so many complaints filed on his desk would give to the all-too-human propensity to take the easy way out and to file charges, then a candidate would be hard put to destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on its face is patently offensive to the Constitution.41
But clearly, the provision constituted a bill of attainder as well, in its fundamental sense as a legislative declaration of guilt. And while the provision prescribed no penalty as the term is known in penology, other than employment disability, it nonetheless imposed some hardship upon the aggrieved party. In Cummings vs. Missouri,42 we are told that deprivation of one's means of livelihood is tantamount to punishment.
In referring to the "legislature" we are not closing the coverage of the ban on acts of Congress purely, notwithstanding our pronouncement in Montenegro vs. Castañeda43 in which we said that "[t]he prohibition applies only to statutes."44 In the first place, the Decree questioned herein is clearly in the nature of a "statute." Secondly, the attainder ban is made on any "law" and perforce, it should likewise apply to any executive act, if is has the character of law. To that extent, we consider Montenegro vs. Castañeda as pro tanto modified.
We come to the questioned Decree.
We hold that the same, specially, the second and third paragraphs, of Section one thereof, (and the third paragraph, of Section three thereof), is a bill of attainder because it presumes one accused under its provisions guilty — as well — of the crimes (murder and homicide under the second paragraph of Section one; and the rebellion, insurrection, and subversion under the third paragraph of Section one, and the third paragraph of Section 3) that supposedly aggravate "illegal possession of firearms" (or "unlawful manufacture of explosives") when the accused has not been tried and found guilty of such crimes in any judicial proceeding. In the case at bar, the fact that the petitioner has been charged with illegal possession of firearms "in furtherance of subversion" means that the petitioner has committed subversion notwithstanding the fact that he is not standing trial for subversion, or has been convicted thereof — because precisely, the Decree does not punish subversion. Otherwise, he should have been indicted under the first paragraph, defining simple "illegal possession."
The fact that one charged under the challenged provisions of the Decree, as was held in People vs. Ferrer, would still have to be proven to have committed rebellion, insurrection, or murder or homicide in the course of the commission of the "main offenses" in a judicial trial would not, to the mind of the Court, salvage the statute. As we said, the Decree does not punish rebellion, insurrection, or rebellion, or murder or homicide, a fact that should make conviction for such offenses impossible (but which the Decree makes possible, anyway). To make the accused answer for such crimes at the same time, then, is to make him answer for an offense of which he has not been charged (violation of either Article 137 of the Revised Penal Code, Republic Act No. 1700, as amended by Executive Orders Nos. 167 and 276, or Article 248 or 249 of the Code), which cannot be done without doing violence to the right of accused persons "to be informed of the nature and cause of the accusation against him."45
At any rate, because the statute itself designates the various crimes abovesaid, including subversion, as "aggravating circumstances," conviction thereunder would of necessity carry with it the accompanying stain of such offenses. It would have made the accused guilty, at the same time, of such offenses notwithstanding the fact that he had been charged with simple illegal possession of firearms or unlawful manufacture of explosives.
Presidential Decree No. 1866, the Court is of the further opinion, is offensive to due process and the prohibition against double jeopardy. The Court reiterates that it does not penalize subversion (or rebellion, etc.) and because it does not, it allows the State to pursue a separate proceeding for the said crimes. But in that case the prosecution need only present the self-same evidence constituting illegal possession of firearms since illegal possession is one of the means of committing subversion under the Anti-Subversion Act. We quote:
SEC. 4. After the approval of this Act, whoever knowingly, wilfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines, and/or its successor or of any subversive association as defined in sections two and three hereof shall be punished by the penalty of arresto mayor and shall be disqualified permanently from holding any public office, appointive and elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall be prision correccional, and in all subsequent convictions the penalty of prision mayor shall be imposed; and any alien convicted under this Act shall be deported immediately after he shall have served the sentence imposed upon him; Provided, That if such member is an officer or a ranking leader of the Communist Party of the Philippines or of any subversive association as defined in sections two and three hereof, or if such member takes up arms against the government, he shall be punished by prision mayor to reclusion perpetua with all the accessory penalties provided therefor in the Revised Penal Code: And provided, finally. That one who conspires with any other person to overthrow the Government of the Republic of the Philippines or the government or any of its political subdivisions by force, violence, deceit, subversion or other illegal means, shall be punished by prision correccional to prision mayor with all the accessory penalties provided therefor in the same Code.46
It shall be noted that under the Act above-quoted, subversion may be committed, among other things, by conspiring in the overthrow of the Government by "other illegal means."47 And doubtless, illegal possession of firearms or unlawful manufacture of explosives is an "illegal means." But because conviction under the Decree does not foreclose a future prosecution under the Anti-Subversion Act, it would have allowed a subsequent punishment for subversion (arising from illegal possession of firearms) based on the same evidence, when the accused has already been convicted of an offense that comprises a mere element of subversion. Certainly, it would have put him twice in jeopardy for the same offense.
While it is true in double jeopardy cases, first jeopardy must have attached and that the accused is under threat of a second one,48 which does not obtain here, the fact that the Decree in question allows the possibility of such a succeeding jeopardy makes it, the Decree, repulsive to the fundamentals of due process.
For the reasons above-stated, we consider our ruling in Lazaro vs. People49 no longer good law. In that case, which involved a prosecution for illegal possession of unlicensed firearm used in parricide under the provisions of Presidential Decree No. 9 (Presidential Decree No. 1866's precursor), we held that "[t]he offense of 'Illegal Possession of Unlicensed Firearm used in Parricide' includes the lesser offense of Parricide."50 "We hold that it is no longer good law, in the first place, because in no way may parricide be considered a "lesser offense" than "illegal possession," for one thing, parricide being an offense punished by the Revised Penal Code and "illegal possession" being an act penalized by a special law. Secondly, if parricide is deemed included in illegal possession of firearm used in parricide, it means that a prosecution for one should be an abatement of a proceeding for the other,51 yet, in Tangan vs. People,52 a prosecution for possession of an unlicensed firearm used in the commission of homicide under Presidential Decree No. 1866, it was held that "the offense charged ... [possession of an unlicensed firearm used in the commission of homicide] ... does not operate to extinguish his criminal liability for the [other]offense charged [homicide]."53 Apparently., a subsequent prosecution for those offenses that are supposed to qualify "illegal possession" (or "illegal manufacture") under Presidential Decree No. 1866 is still possible (as Tangan tells us) but must as apparently, this is where the difficulty arises. For if we allow a trial for such offenses, we would have placed the accused in double jeopardy (as Lazaro tells us).54 It is therefore no valid proposition to say that all talk of double jeopardy is too early pending conviction for the first offense, because that result would be inevitable (in case of a conviction). We find, as we have said, such a situation offensive to due process of law. The Solicitor General would, however, say:
Section 1 of P.D. No. 1866 is not unconstitutional. It is similar to Batas Pambansa Blg. 22. B.P. Blg. 22 punishes the issuance of an unfunded check. The issuance of an unfunded check is the mode or means of commission of estafa under paragraph 2(d), Article 315 of the Revised Penal Code. Under Section 5 of B.P. Blg. 22, "Prosecution under this Act shall be without prejudice to any liability for any violation of the Revised Penal Code. Despite these circumstances, this Honorable Court upheld the constitutionality of B.P. Blg. 22 (Lozano vs. Martinez, 146 SCRA 323). Thus a person can be simultaneously prosecuted under B.P. Blg. 22 and paragraph 2(d), Article 315 of the Revised Penal Code.55
The Court sees no parallel between Batas Blg. 22 and Presidential Decree No. 1866 as to effects and implications. When Batas Blg. 22 allows a separate prosecution for estafa, it does so because the issuance of bad checks, the act punished by it, is a separate act that may or may not constitute estafa because estafa may be committed in ways other than the issuance of bouncing checks, so long as the act has been attended by deceit, which is not central to the Bouncing Checks Law. A successful prosecution for violation of Batas Blg. 22 does not give the fiscal any more advantage, nor does it place the accused at a disadvantage, because he, the fiscal, must further establish deceit, the essence of estafa.56
In the case at bar, however, the petitioner (the accused) is being held liable for illegal possession of firearms "in furtherance of subversion" which, in itself, is a fundamental ingredient of the offense of subversion, because as we have indicated, subversion is committed by "any illegal means." And in that event, the prosecution need not establish — in the separate proceeding for subversion — any other act constituting subversion as defined by law committed by the accused because the finding alone of illegal possession of firearms would be enough to support a conviction for subversion. It would have allowed the prosecution to strike two birds with a single stone in a manner that he would not have been permitted to do so under the due process clause of the Constitution.
There is no doubt that the privilege to arm oneself is subject to State regulation. Regulation, however, should be within rightful and reasonable limits, and with due regard to the rights and liberties of citizens. Centuries ago, we were told that tyranny begins by the disarming of the people, so that the people cannot defend themselves against tyranny. In that event, "regulation" would have been a plain excuse for the oppression of the people.
A final word. Presidential Decree No. 1866 was one of the many presidential issuances which had served the dictatorship, and served it well, as an instrument of repression during the dictatorial years. Because of it, many courageous freedom fighters had perished or languished in various places of detention throughout our country. It is unfortunate that this oppressive Presidential Decree had been allowed to remain in our statute books after the apparatus of dictatorship had been dismantled and sadly, it is still being used as incessantly as in the previous regime. It is an anachronism in the broad democratic space that obtains today. We must strike it down.
WHEREFORE, the petition is GRANTED. Paragraphs two and three, of Section one, of Presidential Decree No. 1866 as amended, as well as paragraph three, of Section three thereof, are declared UNCONSTITUTIONAL and of no force and effect. The immediate release of the petitioner from custody is hereby ORDERED.
IT IS SO ORDERED.2
I would like to add, insofar as the majority in this case adverts to the "Hernandez doctrine," that Presidential Decree No. 1866 is, moreover, an invalid exercise of judicial power, and is therefore offensive to the principle of separation of powers prescribed by the Constitution. In People vs. Hernandez,3 the Court held that common crimes — such as illegal possession of firearms — are simple ingredients of the primary offense (rebellion, subversion, etc.), for which separate prosecutions are not possible. The Court has spoken. The legislature can not reinterpret the law by making mere ingredients of an offense punishable separately. Interpretation of the law is the sole domain of the Court.
As I said, Presidential Decree No. 1866 is one of the last vestiges of authoritarian rule in the country, whereby the State pounced on its opponents under rules that offered no sporting chance or hope to the State's opponents. Democracy has however, been restored, in which the State is called upon to lean favorably toward its opponents (i.e., through favorable penal laws and presumption of innocence). It is time to wipe the Decree out of our statute books.
If the petitioners are convicted of rebellion under the Revised Penal code and found to have used an illegally possessed firearm in connection therewith, they will be subject to the penalty of only prision mayor. The illegal possession of firearms is absorbed in the crime of rebellion and may not be separately punished.
On the other hand, if they are convicted of illegal possession of firearms in connection with the crime of rebellion under P.D. 1866, they will be subject to the extreme penalty of reclusion perpetua (reduced from death). Conviction of the illegal possession carries with it a finding that the accused was engaged in rebellion.
I am unable to understand the obvious disparity. In both instances, two circumstances are established, to wit, rebellion and illegal possession of firearms. Yet the first offense is punished only with prision mayor but the second is punished with reclusion perpetua.
Due process requires as a desideratum of fairness the equivalence of the degree of the offense and the degree of the penalty. A serious offense deserves a heavy penalty while a light offense authorizes only a mild penalty. Otherwise stated, a light offense cannot be punished with a heavy penalty, as where, say, littering is penalized with life imprisonment.
In the cases before us, the law takes an ambivalent position toward the crime of illegal possession of firearms when committed in connection with rebellion. As the basic offense under PD 1866, it is considered a serious offense and penalized with no less than reclusion perpetua. however, as a mere attendant circumstance in committing rebellion under the Revised Penal Code, it is not even separately punished, being deemed absorbed in the main offense.
It seems to me that if it is the intention of the legislature to consider a particular crime a serious offense deserving a heavy penalty, it should be consistent in the application of such penalty. It cannot punish the offense heavily in one case and practically condone it in another case.
One might say that this involves a question of policy or wisdom that is resoluble only by Congress and not by this Court. That may be so, again as a general rule, but not where considerations of due process and equal protection are involved.
Under the laws as they stood when the petitioners were formally indicted, the prosecuting officer was given the choice of the offense he could charge, depending on his discretion, which could in turn depend on his attitude toward the suspect.ℒαwρhi৷ This circumstance gave a dangerous power to the government to discriminate in the prosecution of persons charged with practically the same offense, treating some of them severely and the others with benign leniency.
It has been held that although a law may be fair and impartial on its face, it must nevertheless be annulled if it gives the administrative officer the discretion to enforce it with "an evil eye and an uneven hand" (Yick Wo vs. Hopkins, 118 U.S. 356; People vs. Vera, 65 Phil. 56). That is exactly what PD 1866 empowered the prosecuting officer to do. In fact, at the hearing of this case before this Court, the government counsel frankly admitted that the petitioners were prosecuted under the decree because it prescribed the heavier penalty although they could also have been prosecuted for rebellion under the Revised Penal Code.
Mention has been made of RA 6968 which now imposes for simple rebellion under Articles 134 and 135 of the Revised Penal Code the same penalty for violation of Sec. 1(3) of Sec. 3(3) of PD 1866. The subsequent passage of the amendatory law in 1990 does not, of course, affect the petitioners in the case at bar because the offense imputed to them were supposedly committed in 1988. Such amendment may have corrected the injustice inherent in the aforestated provisions of PD 1866, which is thus now relieved of its constitutional infirmity. However, the decree may still not be applied to the herein petitioners as it was unconstitutional at the time it was made the basis for their prosecution and the subsequent enactment of RA 6968 did not retroactively validate it.
My vote is to grant the petition. So did I vote in Misolas.
Gutierrez, Jr., J., dissent.
