‘NULLUM CRIMEN, NULLA POENA SINE LEGE’:

ELUCIDATION OF THE COURT’S DUTY TO

‘NAMELESS CRIMES’ AND EXCESSIVE
PENALTIES

What is Article 5 of the

Revised Penal Code?

Juris Doctor (JD) 1-5

Polytechnic University of the Philippines (Manila)

College of Law
Introduction
“Nullum crimen, nulla poena sine lege”
(There is no crime if there is no law that punishes the act.)
Imagine a world where murder is not a crime – not yet. Where people only know
that killing is one of, if not the best, revenge or perhaps solution to get rid of someone
that you have always been considered your nemesis.
Diabolic, is it not?
In our world today, as much as we want to maintain peace and harmony, it is, I
suppose, inevitable for lawless people to cause harm and danger to people and their
property, instead of merely sit down and enjoy a sip of a hot-brewed coffee.
Hence, the birth of our criminal justice system. Where every act that deems to be
inherently evil and prohibited evil are punished and given no amount of tolerance.
However, in mischievous minds of people, are the enacted laws sufficient to
cover everything that deems to be evil? Did the authorities already think of every
possible crime that humans can or shall commit?
I suppose not.
As they say, the only constant in this world is change, so as the ways of people.
Therefore, giving rise to the question: “Can a person get away with an act that deems to
be evil, however not punishable by law?” if not, “whose duty is it to punish such acts?”
Ergo, Article 5 of the Revised Penal Code of the Philippines.

Article 5 of the Revised Penal Code.

As stated above, the Revised Penal Code of the Philippines provides for the
remedy that will govern acts which are not punishable by law but deems to be
repressed and punished, and whose duty is it to act on the same.
In addition, the law also provides for the rule in the imposition of an excessive
penalty, to wit:

Art. 5. Duty of the court in connection with acts which should be

repressed but which are not covered by the law, and in cases of excessive
penalties. – Whenever a court has knowledge of any act which it may deem
proper to repress and which is not punishable by law, it shall render the proper
decision, and shall report to the Chief Executive, through the Department of
Justice, the reasons which induce the court to believe that said act should be
made the subject of legislation.
 In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without
suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive
penalty, taking into consideration the degree of malice and the injury caused by
the offense.1

It can be gleaned from the aforementioned provision of the law that it can be
parted in two ways: (1) In connection with acts which should be repressed but which are
not covered by law; and (2) “In cases of excessive penalties.”

“In connection with acts which should be repressed but which are not covered by
the law.”
In the first paragraph of Article 5, it based on the legal precept “nullum crimen,
nulla poena sine lege,” which means that there is no crime if there is no law that
punishes the act. Hence, the same requires the presence of the following:

1. The act committed by the accused appears not covered by any law;
2. The Court deems it proper to repress such act;
3. In that case, the court must render the proper decision by dismissing the case
and acquitting the accused; and
4. The judge must then make a report to the Chief Executive, through the
Secretary of Justice, stating the reasons which induce him to believe that the said act
should be made the subject of penal legislation.2

“In case of excessive penalties.”

On the other hand, the second paragraph of Article 5 which relates to cases of
excessive penalties requires the following:
1. The court after trial finds the accused guilty.
2. The penalty provided by law and which the court imposes for the crime
committed appears to be clearly excessive because the accused acted with lesser
degree of malice, and/or there is no injury or the injury caused is of lesser gravity;

1
The Revised Penal Code of the Philippines, p. 4.
2
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 95.
 3. The court should not suspend the execution of the sentence; and
4. The judge should submit a statement to the Chief Executive, through the
Secretary of Justice, recommending executive clemency.3
Hence, a case where an executive clemency can be recommended for a wife
who killed her cruel husband is an instance where Article 5 of the RPC can be applied.
According to the Supreme Court, in the case of People vs. Canja, 86 Phil. 518,
522-523, as penned by Justice Montemayor, the appellant is entitled to executive
clemency, not a full pardon but a substantial if not a radical reduction or commutation of
her life sentence, in light of all the circumstances and provocations that led to the
commission of the crime, including the fact that the wife's conviction was based on her
own confession.4
Furthermore, another instance is the severity of the penalty for rape, where
Executive clemency is also recommended.
In the case of People vs. Manlapaz, No. L-41819, February 28, 1979, 88 SCRA
704, 719, the Supreme Court ruled that the legislature noticed the surge in sexual
assaults caused by the breakdown in law and morals brought on by the war, and it
attempted to discourage rapists by increasing the penalty for the crime. Hence, in this
particular case, after the accused has served a prison sentence that is in line with
retributive justice, it is possible that he will be granted executive clemency.5
Meanwhile, as the long line of cases decided by the Court provide, the penalties
are not excessive when they are intended to enforce a public policy or when the
circumstances warrant.6

The responsibility for enforcing statutory penalties rests with the courts.
Under the Philippine Law, the courts have the duty to apply the penalty provided
by law regardless of the manner their judgments are executed and implemented by the
executive department.
It is a well-established principle that courts do not evaluate the merits of laws in
terms of their wisdom, effectiveness, or morality. That decision is solely up to the
legislature, which passes laws, and the executive branch, which either signs or rejects
them. Hence, the judiciary has no other role but to interpret laws and apply them when
they are not in conflict with the Constitution.7

3
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 95-96.
4
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 98.
5
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 98.
6
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 98.
7
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 99.
 Furthermore, a judge has the duty to apply the law as interpreted by the
Supreme Court, the highest court of the land.
However, in the case of People vs. Santos, et al., 104 Phil. 560, where to the
extent that a lower court judge disagrees with a Supreme Court doctrine in the course of
deciding a case, he or she is free to express that disagreement; however, before
making a final decision in the case that departs from the Supreme Court's interpretation
of the law, that judge must convince themselves that it is their responsibility to follow the
Supreme Court's interpretation.8
On the other hand, according to Justice Reyes, the first and second paragraphs
of Article 5 are applied to penalties that, in the court's opinion, should be amended by
the legislature. Whereas, in accordance with Article 5 of the Revised Penal Code, the
Supreme Court ordered that a copy of the Decision be provided to the President of the
Philippines, through the Department of Justice, as well as the President of the Senate
and the Speaker of the House of Representatives.9
Lastly, with regard to the degree of malice and the injury caused by the offense,
the wording of the second paragraph of Article 5 of the Revised Penal Code makes it
clear that it applies only "when a strict enforcement of the provisions" of the Revised
Penal Code would result in the imposition of a clearly excessive penalty.10

Article 5 of the RPC also applies to special laws.

In the case of Mendoza vs. People, G.R. No. 183891, October 19, 2011, where in
light of Article 10 of the same Code and the Court's decision in People vs. Simon, 234
SCRA 555, 574, the Court is not prevented from giving the Revised Penal
Code suppletory application even though the petitioner was sentenced under a special
penal law.
Hence, after careful consideration, the Court has decided to forward the
petitioner's case to the Chief Executive for consideration of executive clemency via the
Department of Justice.11

Relevant Jurisprudence

8
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 99.
9
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 100.
10
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 101.
11
The Revised Penal Code, Criminal Law, Book One, Articles 1-113, 2021 Edition, Luis B. Reyes, p. 101.
 In accordance with Article 5 of the Revised Penal Code, the Supreme Court, in a
repository of cases, has decided criminal cases involving and applying the same.
Hence, some of them are the following:
In the case of Ireneo Cahulogan vs. People of the Philippines, G.R. No. 225695.
March 21, 2018, where the private complainant Johnson Tan was transporting Coca-
Cola products. He instructed his driver and helper Braulio Lopez and Loreto Lariosa to
deliver 210 cases of said products worth P52,476.00 Dennis Store. Contrary to his
instruction, the products were delivered to the petitioner’s store. However, petitioner
claimed that he bought the same from Lariosa for P50,000.00 but he could not present
any receipt. Tan negotiated with the petitioner to instead deliver P20,000.00 worth of
empty bottles witIh cases. Tan felt aggrieved, secure an authorization from Coca-cola to
file crime of Fencing against the petitioner.
Hence, upon arraignment, petitioner plead not guilty. The prosecution had
successfully established the of all of the elements of crime of fencing and the RTC
found the petitioner guilty beyond reasonable doubt. Accordingly, he was sentenced to
suffer imprisonment for the indeterminate period of 10 years and one day of prison
mayor as minimum to fifteen years of reclusion temporal as maximum. The Cout of
Appeals affirmed the decision of the Regional Trial Court.
On the other hand, the Supreme Court held that, the penalty imposed was
proper.
The crime committed by the petitioner is penalized under PD 1612 or the Anti-
Fencing Law. Under Section 3, The penalty of prision mayor, if the value of the property
involved is more than 12,000 pesos but not exceeding 22,000 pesos; if the value of
such property exceeds the latter sum, the penalty provided in this paragraph shall be
imposed in its maximum period, adding one year for each additional 10,000 pesos; but
the total penalty which may be imposed shall not exceed twenty years. In such cases,
the penalty shall be termed reclusion temporal and the accessory penalty pertaining
thereto provided in the Revised Penal Code shall also be imposed.
Under the Indeterminate Sentence Law, the penalty under special law shall not
exceed the minimum and maximum penalty prescribed. The PD 1612 or the Anti-
Fencing Law adopts the penalty imposed by the RPC. However, in the enactment of RA
10951, the values of the property and damage on which penalties are based were
adjusted. This resulted in instances where a Fence, which is theoretically a mere
accessory to the crime of Robbery/Theft, will be punished more severely than the
principal of such latter crimes. This incongruence in penalties therefore, impels an
adjustment of penalties.
 In addition, the Court ruled that, however, while it may be the most expeditious
approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare
trespass on prohibited judicial legislation. As the Court remains mindful of the fact that
the determination of penalties is a policy matter that belongs to the legislative branch of
the government, it finds it prudent to instead, furnish both Houses of Congress, as well
as the President of the Republic of the Philippines, through the Department of Justice,
pursuant to Article 5 of the RPC, copies of this ruling in order to alert them on the
aforestated incongruence of penalties, all with the hope of arriving at the proper solution
to this predicament.
WHEREFORE, the petition is DENIED. The Decision dated November 6, 2015
and the Resolution dated June 8, 2016 of the Court of Appeals (CA) in CA-G.R.
CR No. 01126-MIN finding petitioner Ireneo Cahulogan GUILTY beyond
reasonable doubt of the crime of Fencing defined and penalized under
Presidential Decree No. 1612, otherwise known as the "Anti-Fencing Law," are
AFFIRMED with MODIFICATION, sentencing him to suffer the penalty of
imprisonment for the indeterminate period of four (4) years, two (2) months, and
one (1) day of prision correccional, as minimum, to fifteen (15) years of reclusion
temporal, as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a copy of this Decision be
furnished the President of the Republic of the Philippines, through the
Department of Justice, the President of the Senate, and the Speaker of the
House of Representatives.12
In the case of Mark Anthony Nieto and Filemon Vicente vs. People of the
Philippines, G.R. No. 241872, October 13, 2021, on the other hand, whereas on July
15, 2022, PO1 Ronald Garrido guarding a checkpoint, received a text message that
green colored Isuzu truck load with illegal logs would pass by. A truck that match the
description driven by Vicente withNieto (helper) passed and was stopped by PO1
Garrido. Vicente, Nieto and the truck were brought to the local police station. The office
of Department of Environment and Natural Resources was also informed that they were
apprehended persons transporting the lumber without appropriate and adequate
documentation.
According to Vicente, he was only paid to drive the truck and was not informed of
the truck’s cargo. At the checkpoint, they were apprehended and had no intention to
violate the law.
Hence, the Regional Trial Court rendered a Decision finding Vicente and Nieto
guilty beyond reasonable doubt violating Section 68 (now Section 77) of the Revised
Forestry Code. They were sentenced to suffer an indeterminate penalty of two (2) years,

12
Ireneo Cahulogan vs. People of the Philippines, G.R. No. 225695. March 21, 2018
four (4) months and one (1) day of prison correccional, as minimum, to seven (7) years,
four (4) months and one (1) day of prison mayor, as maximum.
Meanwhile, the Court of Appeals affirmed the Decision of the RTC. However, it
recommended to the President that Vicente and Nieto be granted executive clemency
pursuant to Article 5 of the Revised Penal Code.
According to the CA:
Pursuant to Article 5 of the Revised Penal Code, considering the degree of
participation of accused-appellants (being merely the driver and helper of the truck
wherein the illegal logs were loaded) and the penalty meted on them, it is respectfully
recommended that they be granted executive clemency by His Excellency the President
of the Philippines. For this purpose, furnish a copy of this decision to the Office of the
President, through Secretary of Justice, as well as the Board of Pardon and Parole.
Hence, the Supreme Court held that the Court of Appelas is correct in affirming
the Decision of the Regional Trial Court. However, the Court Modified the penalty of
Vicente and Nieto.
According to the Court, violation of Section 68 (now Section 77) of the Forestry
Code is punished as qualified theft with the penalties imposed under Articles 309 and
310 of the RPC. However, the penalties under Article 309 have been modified in view of
the enactment of Republic Act No. 10951. Since the total value of the timber or forest
products illegally possessed by petitioners is P442,402.00, the penalty under Article 309
of the RPC is prision correccional in its minimum and medium periods. Pursuant to
Article 310 of the RPC, the prescribed penalty shall be increased by two (2) degrees or
to prision mayor in its medium to maximum periods, which has a duration of eight (8)
years and one (1) day to twelve (12) years.
Applying the Indeterminate Sentence Law and considering the lack of any
mitigating or aggravating circumstance, the Court finds it proper to impose upon
Petitioners an indeterminate penalty of five (5) years, five (5) months and eleven (11)
days of prision correccional, as minimum, to nine (9) years, four (4) months and one (1)
day of prision mayor, as maximum.
Finally, while the Court sympathizes with the plight of petitioners who were
merely following orders and were consequently caught in possession of the lumber, we
must still apply the law in full force. Dura lex sed lex. However, considering the facts
surrounding petitioners' participation in the crime and guided by jurisprudence on
instances when the facts of the crime elicited the Court's compassion for the accused,
this Court recommends executive clemency.
Pursuant to Article 5 of the Revised Penal Code, the Court shall TRANSMIT the
case to the Chief Executive, through the Department of Justice, and RECOMMENDS
the grant of executive clemency to petitioners.13
13
Mark Anthony Nieto and Filemon Vicente vs. People of the Philippines, G.R. No. 241872. October 13, 2021
Summary
In summarization, Article 5 of the Revised Penal Code is a manifestation that our
justice system is evolving. It has mandated the Court not only to imposed what is the
penalty provided in our laws but also to inform the Legislative and Executed Department
in cases where an act should be punished for proper legislation.
Furthermore, it is the duty of the court to implement the penalty provided in the
Revised Penal Code and under Special Laws. However, there are times that
amendment to these laws may be inconsistent with the existing laws. Hence, the Court
will have to implement, whether he agreed or not, what is the imposable penalty.
In these circumstances, the Court has the duty to submit recommendation to the
Executive Department through Secretary of Justice an Executive Clemency in favor of
the convict.

Conclusion
To culminate, while it is true that not all the acts that deem to be evil are covered
by the enacted laws and regulations by the respective authorities, it does not diminish
the fact that these cannot be repressed and punished in the future.
As clearly provided by Article 5, it is the court’s duty to prove that the acts
committed should be made subject of a penal legislation, which should be furnished in a
report to the Chief Executive via the Department of Justice, for these acts to be
penalized and, hence, prevented.
Until then, the legal maxim “Nullum crimen, nulla poena sine lege” shall prevail.