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. — W h e n e v e r a c o u r t ha s k n o w l e d g e of an y
ac t w h i c h i t ma y d e e m p r o p e r t o r e p r e s s an d w h i c h i s no t
p u n i s h a b l e b y law , i t shal l r e n d e r th e p r o p e r d e c i s i o n an d
sha ll r e po r t t o th e C h ie f E x e c u t i v e , t h r o u g h th e D e p a r t m e n t

1
 WHEN ACTS ARE NOT COVERED BY LAW Art 5
AND IN CASES OF EXCESSIVE PENALTIES

o f J u s t i c e , th e r e a s o n s w h i c h i n d u c e th e c o u r t t o b e l i e v e tha t
sai d ac t s h o u l d b e m a d e th e s ub j e c t o f p e n a l l e g i s l a t i o n .
I n th e s a m e wa y th e c o u r t s ha l l s u b m i t t o th e C hie f
E x e c u t i v e , t h r o u g h th e D e p a r t m e n t o f J u s t i c e , su c h s t a t e m e n
t a s ma y b e d e e m e d p r o p e r , w i t h o u t s u s p e n d i n g th e e x e c u t i o
n of th e s e n t e n c e , w h e n a st r ic t e n f o r c e m e n t of th e p r o v i s i o n s
of thi s Cod e w o u l d r e s u l t i n th e i m p o s i t i o n o f a c le a r l y e x c e s s i v e
p e n a l t y , t a k i n g int o c o n s i d e r a t i o n th e d e g r e e o f m a l i c e an d
th e i n j u r y c a u s e d b y th e o ff en se .

"In connection with acts which should be repressed but which

are not covered by the law."
The 1st paragraph of this article which contemplates a trial of
a criminal case requires the following:
The act committed by the accused appears not punishable
by any law;
But 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;
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.

Basis of par. Art. 5.

The provision contained in paragraph 1 of Art. 5 is based on
the legal maxim "nullum crimen, nulla poena sine lege," that is, that
there is no crime if there is no law that punishes the act.

"In cases of excessive penalties."

The 2nd paragraph of Art. 5 requires that —
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 —

2
Art. 5 WHEN ACTS ARE NOT COVERED BY LAW
AND IN CASES OF EXCESSIVE PENALTIES

a.
the accused acted with lesser degree of malice,
or;
b.
there is no injury or the injury caused is of lesser
gravity.
The court should not suspend the execution of the sen•
tence.
4. The judge should submit a statement to the Chief Ex•
ecutive, through the Secretary of Justice, recommending
executive clemency.

Examples of the accused acting with lesser degree of mal•

ice:
In a case where the accused maltreated his wife in
his inebriated state, because she prevented him from whip•
ping their negligent son, and the maltreatment inflicted
by the accused was the proximate cause of her death, the
Supreme Court applied Article 5 of the Revised Penal Code,
"considering that the accused had no intent to kill his wife
and that her death might have been hastened by lack of
appropriate medical attendance or her weak
The penalty of perpetua, prescribed by law for the
crime committed, appears to be excessive. (People vs.
Monleon, No. L-36282, Dec. 10, 1976, 74 SCRA 263, 269)
Father and son were convicted of qualified theft for
stealing ten tender coconut fruits from two coconut trees
in a coconut plantation, for the family's consumption. The
court sentenced each of them to an indeterminate penalty
of from four (4) months and one (1) day of arresto mayor to
three (3) years, six (6) months and twenty-one (21) days of
correccional, according to Art. 310 of the Revised
Penal Code. The Court of Appeals held: In the light of the
circumstances surrounding the case, we are of the belief
that the degree of malice behind the appellants' felonious
act does not warrant the imposition of so stiff a penalty
as we are now constrained to mete out under the law. We
recommend, therefore, that they be pardoned after they
shall have served four (4) months of the penalty so imposed.
Let a copy of this decision be forwarded to His Excellency,

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 WHEN ACTS ARE NOT COVERED BY LAW Art 5
AND IN CASES OF EXCESSIVE PENALTIES

the President of the Philippines, through the Honorable,

the Secretary of Justice. (People vs. Espino, et CA-G.R.
No. Feb. 20, 1956)

Example of total absence of injury:

The defendant chief of police altered and falsified the

municipal police blotter and the book of records of arrests
and the return of the warrant of arrest and the bail bond
of a person charged with qualified seduction so as to make
them show that the said person was arrested and gave bond
on the 13th day of September, 1930, whereas, in truth and
in fact, as said records showed before said falsification, that
person was arrested and released on bond on the 6th day of
September, 1930; and that defendant justice of the peace
conspired and cooperated with his codefendant in mak•
ing said falsification in order to meet the administrative
charges then pending against him. In other words, those
falsifications were committed to make it appear that there
was no delay in the preliminary investigation conducted
by the justice of the peace for qualified seduction. In this
case, there is apparent lack of malice and total absence of
injury. (People vs. Cabagsan and Montano, 57 Phil. 598)

Executive clemency recommended for the wife who killed

her cruel husband.
Her deceased husband not content with squandering away
the family substance, and satisfied with keeping a mistress
upon whom he must have spent some of the money that properly
belonged to his own family including his wife, got into the habit of
drinking until he became a habitual drunkard. On the very
day that she killed her husband, according to her own confession
on which her conviction was based, he came home drunk, forthwith
laid hands on her, striking her on the stomach until she fainted,
and when she recovered consciousness and asked for the reason for
the unprovoked attack, he threatened to renew the beating. At the
supper table instead of eating the meal set before him, he threw the
rice from his plate, thus adding insult to injury. Then he left the
house and when he returned he again boxed his wife, the herein
appellant. The violence with which appellant killed her husband

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 Art. 5 WHEN ACTS ARE NOT COVERED BY LAW
AND IN CASES OF EXCESSIVE PENALTIES

reveals the pent-up righteous anger and rebellion against years

of abuse, insult, and tyranny seldom heard of. Considering all
these circumstances and provocations including the fact as already
stated that her conviction was based on her own confession, the
appellant is deserving of executive clemency, not of full pardon but
of a substantial if not a radical reduction or commutation of her
life sentence. (Montemayor, concurring in People vs. Canja, 86
Phil. 518, 522-523)

Executive clemency recommended because of the

severity of the penalty for rape.
The crime committed by the accused is simple rape. Before
Article 335 of the Revised Penal Code was amended, simple rape
was penalized by reclusion temporal or twelve years and one day to
twenty years. Republic Act No. raised the penalty for simple
rape to reclusion perpetua and made qualified rape a capital offense.
Taking notice of the rampancy of sexual assaults, ensuing from the
lawlessness and deterioration of morals occasioned by the war, the
lawmaking body sought to deter rapists by increasing the penalty
for rape. It is believed that in this case, after the accused shall have
served a term of imprisonment consistent with retributive justice,
executive clemency may be extended to him. (People vs. Manlapaz,
No. Feb. 28, 1979, 88 SCRA 704, 719)

The penalties are not excessive when intended to enforce

a public policy.
1. The rampant lawlessness against property, person, and
even the very security of the Government, directly
able in large measure to promiscuous carrying and use of
powerful weapons, justify imprisonment which in normal
circumstances might appear excessive. (People vs. Estoista,
93 Phil. 647, 654)
2. With regard to the fine of P5,000.00 imposed by the court
for selling a can of powdered milk for when the
selling price for it was it should be considered that
Congress thought it necessary to repress profiteering with
a heavy fine so that dealers would not take advantage of
the critical condition to make unusual profits. (People vs.
Tiu Ua, 96 Phil. 738, 741)

5
 WHEN ACTS ARE NOT COVERED BY LAW Art 5
AND IN CASES OF EXCESSIVE PENALTIES

Courts have the duty to apply the penalty provided by law.

A trial judge expressed in his decision his view against the
wisdom of the death penalty and refused to impose it. Held: It is the
duty of judicial officers to respect and apply the law, regardless of
their private opinions.
It is a well-settled rule that the courts are not concerned with the
wisdom, efficacy or morality of laws. That question falls exclusively
within the province of the Legislature which enacts them and the
Chief Executive who approves or vetoes them. The only function of
the judiciary is to interpret the laws and, if not in disharmony with
the Constitution, to apply them. (People vs. 88 Phil. 35)
A trial judge senten ced the accused to life imprisonment,
although the commission of the crime of robbery with homicide was
attended by the aggravating circumstances of and in band,
"in view of the attitude of the Chief Executive on death Held:
The courts should interpret and apply the laws as they find them
on the statute books, regardless of the manner their judgments are
executed and implemented by the executive department. (People vs.
105 Phil. 502)

Judge has the duty to apply the law as interpreted by the

Supreme Court.
If a Judge of a lower court feels, in the fulfillment of his mission
of deciding cases, that the application of a doctrine promulgated by
the Supreme Court is against his way of reasoning, or against his
conscience, he may state his opinion on the matter, but rather than
disposing of the case in accordance with his personal view, he must
first think that it is his duty to apply the law as interpreted by the
Highest Court of the land, and that any deviation from a principle
laid down by the latter would unavoidably cause, as a sequel, unnec•
essary inconveniences, delays and expenses to the litigants. (People
vs. Santos, et 104 Phil. 560)
Accused-appellant claims that the penalty of reclusion perpetua
is too cruel and harsh a penalty and pleads for sympathy. Courts are
not the forum to plead for sympathy. The duty of courts is to apply
the law, disregarding their feeling of sympathy or pity for an accused.
DURA SED LEX. The remedy is elsewhere — clemency from the
executive or an amendment of the law by the legislative, but surely,

6
Art. 6 STAGES OF EXECUTION
Definition of Stages

at this point, this Court can but apply the law. (People vs. G.R. No. 116719, Jan. 18,
1996)

"When a strict enforcement of the provisions of this Code."

The second paragraph of Art. 5 of the Revised Penal Code has no application to the
offense defined and penalized by a special law. (People vs. Salazar, 102 Phil.
The reason for this ruling is that second paragraph of Art. 5 specifically mentions "the
provisions of this
Art. 5 of the Revised Penal Code may not be invoked in cases involving acts mala prohibita,
because said article applies only to acts mala in se, or crimes committed with malice or
criminal intent. (People vs. Quebral, C.A., 58 O.G. 7399) The ruling is based on the phrase,
"taking into consideration the degree of
Before the case of People vs. Salazar, supra, was decided by the Supreme Court, it applied the
second paragraph of Art. 5 in cases involving illegal possession of firearms, a crime
punishable by a special law (People vs. Estoesta, 93 Phil. 654; People vs. 101 Phil. 179),
and to the offenses punished by the Price Control Law. vs. People, G.R. No.
April 12, 1954)