Today is Thursday, March 23, 2017

Revisiting "ISLAW"

By Atty. Harold Huliganga

In my five years now as a Court Attorney, I had, on several occasions, come across lower court decisions incorrectly applying the Indeterminate Sentence Law (I. S. Law) or Act No. 4103. It is seriously disturbing that despite its seeming simplicity and brevity, some judges had been perpetually misapplying it.

The basic mandate of the I. S. Law is the imposition of an indeterminate sentence which is comprised by a MINIMUM term and a MAXIMUM term. It is indeterminate in the sense that after serving the MINIMUM, the convict may be released on parole, or if he is not fitted for release, he shall continue serving his sentence until the end of the MAXIMUM. It is the fixing of the MINIMUM and MAXIMUM terms which generates a lot of confusion and is the constant source of error of some judges.

There is not much difficulty in ascertaining the indeterminate sentence if the crime is a violation of a special law because in such a case, the I. S. Law merely requires that the MAXIMUM term thereof shall not exceed the maximum fixed by the special law while the MINIMUM shall not be less than the minimum prescribed therein. Accordingly, if a special law imposes a penalty of “three (3) to nine (9) years of imprisonment”, the MINIMUM of the indeterminate sentence cannot be less than “3” years while the MAXIMUM thereof cannot be more than “9” years. Hence, the indeterminate sentence may be decreed as “3-9 years”, “3 years & 9 months - 7 years & 8 months”, “3-4 years”, “3-5 years”, “5-8 years, “8-9 years”, etc., depending on the sound discretion of the judge.

However, it should be stressed that the reference to special law in this regard refer to those which provide for one specific penalty or a range of penalties with definitive durations, such as imprisonment for ‘eight years’ or for ‘one year to five years’ but without division into periods or any technical statutory cognomen. Where the penalty in the special law adopts the technical nomenclature and signification of the penalties under the Revised Penal Code (RPC), such as “prision mayor”, “prision correccional maximum”, etc., the ascertainment of the indeterminate sentence will be based on the rule intended for those crimes punishable under the RPC.

The rule for ascertaining the indeterminate sentence for crimes punishable under the RPC is much arcane and complicated than the rule applied in those crimes punishable under a special law. In crimes punishable under the RPC, the indeterminate sentence is arrived at by determining the MAXIMUM term, which, in view of the attending circumstances, could be properly imposed under the rules of the RPC, and the MINIMUM term, which shall be within the range of the penalty next lower to that prescribed by the RPC for the offense.

Prior to the effectivity of the I. S. Law, prison sentences were imposed and fixed as a straight penalty exactly as provided for under the RPC, modified only by the applicable rules therein, to wit: Articles 46, 48, 50 to 57, 61, 62, 64, 65, 68, 69, and 71. The MAXIMUM term of the indeterminate sentence is determined exactly in that manner as if the Indeterminate Sentence Law had never been enacted. Thus, same rules and provisions (except par. 5 of Art. 62) must be taken into account in determining the MAXIMUM term of the indeterminate penalty. In determining the MAXIMUM of the indeterminate sentence, the following questions may be asked by way of a guide or checklist: (a) What is the imposable penalty for the crime?, (b) Is the convicted felon a principal, accessory or accomplice?, (c) Was the crime consummated, frustrated or attempted?, (d) Is the crime committed a complex crime?, (e) Is the commission of the crime attended by any mitigating or aggravating circumstances?, (f) Is the penalty for the crime indivisible or composed of three periods, i.e. minimum, medium and maximum periods?, and (g) Is the accused entitled to a privilege mitigating circumstance?

For instance, if a person is convicted as a principal in the crime of homicide, the imposable penalty under Art. 249 of the RPC is reclusion temporal, a divisible penalty. In the absence of any mitigating or aggravating circumstance, the MAXIMUM of the indeterminate penalty will be taken anywhere within the range of reclusion temporal medium, i.e. from 14 years, 8 months and 1 day to 17 years and 4 months. The emphasis is on the phrase within the range which means that anywhere within that period may be fixed the MAXIMUM term of the indeterminate sentence. Thus, the judge, at his sound discretion, may fix it at “14 years, 10 months and 26 days”, “17 years, 2 months and 6 days”, “16 years”, etc.

A greater difficulty in fixing the MAXIMUM term of the indeterminate penalty arises where the range of the penalty provided for in the RPC is composed of only two periods. For example, in the crime of estafa under Article 315 of the RPC, the imposable penalty is prision correccional maximum to prision mayor minimum. In such case, the total number of years included in the two periods should be divided into three equal periods of time, forming one period for each of the three portions. Thus: minimum period – 4yrs., 2mos. & 1day to 5yrs., 5mos. & 10days; medium period – 5yrs., 5mos. & 11days to 6yrs., 8mos. & 20days; and maximum period – 6yrs., 8mos. & 21days to 8yrs.

In determining the MINIMUM term of the indeterminate sentence, the I. S. Law mandates that the same be within the range of the penalty next lower to that prescribed by the RPC for the offense. In this regard, wide latitude of discretion is given to the courts to fix the MINIMUM of the indeterminate penalty anywhere within the range of the penalty next lower, without regard to any modifying circumstances and without reference to the periods into which it may be subdivided. In the previous example involving the crime of homicide, the imposable penalty is reclusion temporal. The penalty next lower would therefore be prision mayor. Within the range of prision mayor, the court may fix the MINIMUM of the indeterminate penalty. Thus, the judge may fix it at “6 years and 1 day”, “6 years and 5 months”, “8 years”, “12 years”, etc. While ample discretion is given to courts in fixing the MINIMUM of the indeterminate sentence, the determination thereof nonetheless presents two aspects: first, the more or less mechanical determination of the extreme limits of the minimum imprisonment period; and second, the broad question of the factors and circumstances that should guide the discretion of the court in fixing the minimum penalty within the ascertained limits.

The common practice has been to fix the MINIMUM of the indeterminate sentence exactly one degree lower to the MAXIMUM arrived at. Thus, for example, if the MAXIMUM fixed by the court is reclusion temporal medium, the MINIMUM is usually fixed at prision mayor medium, which is exactly a degree lower. While the MINIMUM arrived at in that case is technically correct, such nonetheless ignores the theoretical signification of the phrase “penalty next lower” under the I. S. Law.

Conscientious adherence to the provisions of the I. S. Law is an indispensable component of a fair and impartial judgment. For what could be the difference of even only one day in the period of imprisonment of a convict could mean so much to the precious and cherished liberty of the person.

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