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 lessthan 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 temporalmedium, 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.