EN BANC

URBANO M. MORENO, Petitioner,

G.R. No. 168550

Present:

PANGANIBAN, C.J., PUNO, QUISUMBING, - versus YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, COMMISSION ON ELECTIONS and NORMA L. MEJES, Respondents. TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, J., JJ.

Promulgated:

August 10, 2006

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DECISION

TINGA, J.:

In this Petition1[1] dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution2[2] of the Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution3[3] of the Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the elective

1[1]Rollo, pp. 3-19.

2[2]Id. at 20-26; Penned by Commissioner F.A. Tuason, Jr.

3[3]Id. at 27-31; Penned by Commissioner R.Z. Borra.

office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. Allegedly, following the case of Baclayon v. Mutia,4[4] the imposition of the sentence of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result of his conviction, including the right to vote and be voted for in the July 15, 2002 elections.

4[4]No. L-59298, April 30, 1984, 129 SCRA 148.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified from running for Punong Barangay.

The Comelec First Division adopted this recommendation. for reconsideration filed with the Comelec en banc,

On motion

the Resolution of the

First Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence, are disqualified from running for any elective local position.5[5] Since Moreno was released from probation on December 20, 2000, disqualification shall commence on this date and end two (2) years thence. The grant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification from running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of Baclayon v. Mutia cited by

5[5]Comelec Resolution No. 4801, otherwise known as the Guidelines on the Filing of Certificates of Candidacy in Connection with the Synchronized Barangay and Sangguniang Kabataan Elections, has a similar provision in Sec. 3(a) thereof.

Moreno and the Probation Law because it is a much later enactment and a special law setting forth the qualifications and disqualifications of elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local Government Code because it is a special law which applies only to probationers. Further, even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous misconduct.

In its Comment6[6] dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this Court in Dela Torre v. Comelec7[7] definitively settled a similar controversy by ruling that conviction for an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and remains totally unaffected notwithstanding the grant of probation.

6[6]Rollo, pp. 37-47.

7[7]327 Phil. 1144 (1996).

Moreno filed a Reply to Comment8[8] dated March 27, 2006, reiterating his arguments and pointing out material differences between his case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for violation of the AntiFencing Law, an offense involving moral turpitude covered by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only after appealing his conviction, such that he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase within two (2) years after serving sentence found in Sec. 40(a) of the Local Government Code, which reads:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

8[8]Rollo, pp. 60-70.

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; [Emphasis supplied.] . . . .

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime involving moral turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two (2) years from his discharge from probation after having been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue being whether Morenos sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable.

Our

pronouncement therein that the grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing of which petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this

case. At any rate, the phrase within two (2) years after serving sentence should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.

The Courts declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to be considered an obiter in view of the fact that Dela Torre was not even entitled to probation because he appealed his conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or opportunism on the part of an accused who, although already eligible, did not at once apply for probation, but did so only after failing in his appeal.9[9]

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase service of sentence, understood in its general and common sense, means the confinement of a convicted

9[9]Lagrosa v. People, G.R. No. 152044, July 3, 2003, 405 SCRA 357.

person in a penal facility for the period adjudged by the court.10[10]

This

seemingly clear and unambiguous provision, however, has spawned a controversy worthy of this Courts attention because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the law to include even those who did not serve a day of their sentence because they were granted probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged sentence having been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the

imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.

10[10]Art. 86 of the Revised Penal Code provides that the penalties of reclusion perpetua, reclusion temporal, prision mayor, prison correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period11[11] imposed upon Moreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation,12[12] the probationer does not serve the

11[11]REVISED PENAL CODE, Art. 43.

12[12]Presidential Decree No. 968 (1976), as amended, Probation Law of 1976. Sec. 14. The period of probation of a defendant sentenced to a term of imprisonment of not more than one (1) year shall not exceed two (2) years, and in all other cases, said period shall not exceed six (6) years.

penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order.13[13]

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact that Morenos judgment of conviction attained finality upon his application for probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local Government Code unequivocally

disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation which, we reiterate, should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.

13[13]Presidential Decree No. 968 (1976), as amended, Probation Law of 1976. Sec. 10.

The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the Probation Law provides that [t]he final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. Thus, when Moreno was finally discharged upon the courts finding that he has fulfilled the terms and conditions of his probation, his case was deemed terminated and all civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial interpretation,14[14] our conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended meaning of the phrase service of sentence, i.e., whether the legislature also meant to disqualify those who have been granted probation. The Courts function, in the face of this seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government Code. Interpretare et concordare legis legibus est optimus interpretandi.

14[14]Abello v. Commissioner of Internal Revenue, G.R. No. 120721, February 23, 2005, 452 SCRA 162.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which is granted to a deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he was convicted.15[15] Thus, the Probation Law lays out rather stringent standards regarding who are qualified for probation. For

instance, it provides that the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than six (6) years; convicted of any offense against the security of the State; those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have been once on probation; and those who are already serving sentence at the time the substantive provisions of the Probation Law became applicable.16[16]

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the disqualification.

15[15]Santos v. Court of Appeals, 377 Phil. 642, 652 (1999).

16[16]Presidential Decree No. 968, as amended, Probation Law of 1976, Sec. 9.

Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification from holding public office. That it chose not to include probationers within the purview of the provision is a clear expression of the legislative will not to disqualify probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local Government Code. While the Local

Government Code is a later law which sets forth the qualifications and disqualifications of local elective officials, the Probation Law is a special legislation which applies only to probationers. It is a canon of statutory

construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute.17[17]

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include Moreno, the Comelec

17[17]Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 15, 2005, 456 SCRA 414.

committed an egregious error which we here correct.

We rule that Moreno was

not disqualified to run for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec18[18] where he said that it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement as to costs.

SO ORDERED.

18[18]327 Phil. 521 (1996).

DANTE O. TINGA

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice

REYNATO S. PUNO Associate Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

ANTONIO T. CARPIO
Associate Justice

Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

CANCIO C. GARCIA MINITA V. CHICO-NAZARIO Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

EN BANC [G.R. No. 142675. July 22, 2005] VICENTE AGOTE Y MATOL, petitioner, vs. HON. MANUEL F. LORENZO, Presiding Judge, RTC, Branch 43, Manila and PEOPLE OF THE PHILIPPINES, respondents. DECISION GARCIA, J.: In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of Appeals in CA-G.R. SP No. 2991-UDK, to wit: 1. Resolution dated September 14, 1999,[1] dismissing the Petition for Certiorari with Prayer for the Issuance of a Temporary Restraining Order filed by the petitioner against the Honorable

Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for refusing to retroactively apply in his favor Republic Act No. 8294[2]; and, 2. Resolution dated February 8, 2000,[3] denying petitioners motion for reconsideration. As culled from the pleadings on record, the following are the undisputed factual antecedents: Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal Possession of Firearms under Presidential Decree No. 1866[4] and violation of COMELEC Resolution No. 2826[5] (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly committed, as follows: CRIMINAL CASE NO. 96-149820 That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no. with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor. CONTRARY TO LAW. CRIMINAL CASE NO. 96-149821 That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V. Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period, without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No. 2828, in relation to RA No. 7166 (Gun Ban). CONTRARY TO LAW. On arraignment, petitioner pleaded Not Guilty to both charges. Thereafter, the two (2) cases were tried jointly. Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in both cases, separately sentencing petitioner to an indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821 (violation of the COMELEC Resolution on gun ban). Meanwhile, on June 6, 1997, Republic Act No. 8294[6] was approved into law.

Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866 has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession of firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court. In its order dated July 15, 1999,[7] however, the trial court denied petitioners motion, saying: While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in the case of Padilla vs. CA declared: The trial court and the respondent court are bound to apply the governing law at the time of the appellants commission of the offense for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of judicial officers to respect and apply the law as it stands. Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK. In the herein assailed resolution dated September 14, 1999,[8] the appellate court dismissed petitioners recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court. With his motion for reconsideration having been denied by the appellate court in its subsequent resolution of February 8, 2000,[9] petitioner is now with us, submitting for resolution the following issues: (1) whether the Court of Appeals erred in dismissing his petition for certiorari; and (2) whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application. The petition is partly meritorious. At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial court. What he questions is said courts legal conclusion that Rep. Act No. 8294 cannot be retroactively applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals:[10] For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact when the doubt or difference arises as to the truth or the falsehood of the facts alleged. Considering that judgments of regional trial courts in the exercise of their original jurisdiction are to be elevated to the Court of Appeals in cases when appellant raises questions of fact or

mixed questions of fact and law, while appeals from judgments of the [same courts] in the exercise of their original jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only questions of law[11], petitioner should have appealed the trial courts ruling to this Court by way of a petition for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,[12] pursuant to Rule 41, Section 2 (c) of the same Rules, viz: SEC. 2. Modes of appeal. (a) xxx xxx xxx (b) xxx xxx xxx (c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45, his right to resort to a petition for certiorari under Rule 65 was effectively foreclosed, precisely because one of the requirements for the availment of the latter remedy is that there should be no appeal, or any plain, speedy and adequate remedy in the ordinary course of law,[13] the remedies of appeal and certiorari being mutually exclusive and not alternative or successive.[14] As correctly observed by the Court of Appeals, what petitioner should have done was to take an appeal from the trial courts order of July 15, 1999 which denied his motion for reconsideration of the May 18, 1999 judgment of conviction. Petitioners case is worse compounded by the fact that even his period for appeal had already prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK. The Rollo of said case reveals that petitioner received his copy of the trial courts order denying his motion for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court. Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities in the Rules and hold the bull by its horns, so to speak. After all, the power of this Court to suspend its own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor General, et. al. vs. The Metropolitan Manila Authority,[15] we held: Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as expressly recognized in the Constitution, to promulgate rules concerning pleading, practice and procedure in all courts. In proper cases, procedural rules may be relaxed

or suspended in the interest of substantial justice, which otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx xxx xxx xxx

We have made similar rulings in other cases, thus: Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No. 1866 can be retroactively applied to this case. Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10) years and one (1) day of prision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1) day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of 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. (Emphasis supplied) When Rep. Act No. 8294 took effect on July 6, 1997,[16] the penalty for illegal possession of firearms was lowered, depending on the class of firearm possessed, viz: SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the person arrested. (Emphasis supplied) Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294 should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment,[17] the Office of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court in People vs. Jayson[18] to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does not apply if another crime has been committed, should not be applied to this case because the proviso in Section 1 of said law that no other crime was committed must refer only to those crimes committed with the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as here. As early as August 1997, the month after Rep. Act No. 8294 took effect,[19] this Court has pronounced in Gonzales vs. Court of Appeals[20] that said law must be given retroactive effect in favor of those accused under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.[21] For sure, in People vs. Valdez,[22] where the accused was charged with the complex crime of multiple murder with double frustrated murder and illegal possession of firearms and ammunitions under two separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively so that the accused therein may not be convicted of the separate crime of illegal possession of firearms, but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases.[23] Yet, in other cases,[24] although the Court had given Rep. Act No. 8294 retroactive effect so as to prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said unlicensed firearm was used to commit the crime of murder or homicide, the Court did not appreciate this use of such unlicensed firearm as an aggravating circumstance as provided therein, when the use of an unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal Procedure. In the light of the existing rulings and jurisprudence on the matter, the present case takes center stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban), but the unlicensed firearm was not used or discharged in this case. The question then which appears to be of first impression, is whether or not the unlicensed firearm should be actually used and discharged in the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no separate crime of illegal possession of firearms may be charged.

Let us take a look at the jurisprudence once again. In Cupcupin vs. People,[25] the accused was charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession of prohibited drugs. In the more recent case of People vs. Almeida,[26] however, although the accused was acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court nevertheless made the following clear pronouncement: Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No. 8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as, in this case, that of illegal possession of dangerous drugs. (Emphasis supplied) In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs, and therefore, was not being used in the commission of an offense. Given this Courts aforequoted pronouncement in Almeida, can the accused in the present case still be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban, more so because as in Almeida, the unlicensed firearm was not actually used or discharged in committing the other offense? In People vs. Walpan M. Ladjaalam,[27] this Court, interpreting the subject proviso in Section 1 of Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held: xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms. Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx xxx xxx xxx

xxx The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.(Emphasis supplied). The aforementioned ruling was reiterated and applied in the subsequent cases of People vs. Garcia,[28] where the judgment of conviction of the accused-appellants for illegal possession of

firearms was set aside there being another crime kidnapping for ransom which they were perpetrating at the same time; People vs. Bernal,[29] where the Court retroactively applied Rep. Act No. 8294 in accused-appellants favor because it would mean his acquittal from the separate offense of illegal possession of firearms; and People vs. Bustamante,[30] where, in refusing to convict the accused-appellant of the separate offense of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be acquitted of the charge of illegal possession of firearms. Guided by the foregoing, the Court cannot but set aside petitioners conviction in Criminal Case No. 96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e., violation of COMELEC Resolution No. 2826 or the Gun Ban. Admittedly, this ruling is not without misgivings considering that it would mean petitioners acquittal of the more serious offense of illegal possession of firearms which carries a much heavier penalty than violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam:[31] xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to the proven facts, and we have done so in this case. The solemn power and duty of the Court to interpret and apply the law does not include the power to correct by reading into the law what is not written therein. While we understand respondent Peoples contention that the use of the firearm seemed to have been the main consideration during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word use never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The Courts hands are now tied and it cannot supply the perceived deficiency in the final version without contravening the most basic principles in the interpretation of penal laws which had always leaned in favor of the accused. Under our system of government where powers are allocated to the three (3) great branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of Rep. Act No. 8294. As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not actually used. For sure, there is, in this case, closer relation between possession of unlicensed firearm and violation of the COMELEC gun-ban than the illegal possession of unlicensed firearm to the crime of illegal possession of prohibited drugs in Almeida.

WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED. Since petitioner has already served more than the penalty imposed upon him by the trial court in Criminal Case No. 96-149821, his immediate release from custody is hereby ORDERED unless detained for some other lawful cause. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.

Penned by Associate Justice Eloy R. Bello, Jr. (ret.) and concurred in by Associate Justices Jainal D. Rasul (ret.) and Ruben T. Reyes.
[1] [2]

An Act Amending the Provisions of Presidential Decree No. 1866, As Amended. Rollo, pp.30-31.

[3]

Entitled 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, Ammunition or Explosives, and Imposing Stiffer Penalties for Certain Violations Thereof, and for Relevant Purposes.
[4] [5]

Mistakenly referred to as No. 2828 in the Information. Supra. Rollo, p. 25. Rollo, pp. 27-28a. Rollo, pp. 30-31. 297 SCRA 602, 615 [1998]. Macawiwili Gold Mining and Development Co., Inc. v. Court of Appeals, supra, at p. 614.

[6]

[7]

[8]

[9]

[10]

[11]

Section 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the
[12]

Regional Trial Court, or other courts, whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.
[13]

Section 1, Rule 65, 1997 Rules of Court. Bernardo vs. CA, 275 SCRA 423, 426 [1997]. G.R. No. 102782, Dec. 11, 1991, 204 SCRA 837, 842-843. R.A. 8294 was approved on June 6, 1997 and published on June 21, 1997. Rollo, pp. 54-55. 282 SCRA 166 [1997]. RA 8294 took effect on July 6, 1997. 277 SCRA 518 [1997].

[14]

[15]

[16]

[17]

[18]

[19]

[20]

Patrano vs. CA, October 31, 1997; People vs. Bergante, February 27, 1998; People vs. Molina, July 22, 1998.
[21] [22]

304 SCRA 611 [1999].

People vs. Narciso, November 21, 2002; People vs. Lopez, January 14, 2003; People vs. Bustamante, February 12, 2003.
[23]

People vs. Ave, October 18, 2002; People vs. Delim, January 28, 2003; People vs. Sapigao, June 18, 2003; People vs. Lachica, September 3, 2003.
[24] [25]

392 SCRA 203 [2002]. 418 SCRA 254 [2003]. 340 SCRA 617, 648-649, 650 [2000]. 373 SCRA 134, 160, January 15, 2002 388 SCRA 211, 224, September 2, 2002. 397 SCRA 326, 344, February 12, 2003. Supra at pp. 650-651.

[26]

[27]

[28]

[29]

[30]

[31]