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381 Phil. 690


[ G.R. Nos. 132875-76, February 03, 2000 ]




The accused-appellant, Romeo G. Jalosjos is a full-fledged member of Congress who is now confined at the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts[1] is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense.

The issue raised is one of first impression.

Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in the judicial interpretation of legislative privilege in the context of penal law.

The accused-appellant’s "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was filed on the grounds that –
  1. Accused-appellant’s reelection being an expression of popular will cannot be rendered inutile by any ruling, giving priority to any right or interest – not even the police power of the State.

  2. To deprive the electorate of their elected representative amounts to taxation without representation.

  3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed mandate entrusted to him by the people.

  4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.

  5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.

  6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of government to respect its mandate.

  7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to discharge his mandate.

  8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.
The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by his constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints arising from pending criminal cases.

True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first task is to ascertain the applicable law.

We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to high government office, by itself, frees the official from the common restraints of general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience rather than exemption.

The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that the privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations.

The 1935 Constitution provided in its Article VI on the Legislative Department:
Sec. 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going to and returning from the same; xxx.
Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from the same.
For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive interpretation of immunity and the intent to confine it within carefully defined parameters is illustrated by the concluding portion of the provision, to wit:
xxx but the Batasang Pambansa shall surrender the member involved to the custody of the law within twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session.

The accused-appellant argues that a member of Congress’ function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that–
A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide.
However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations.

Accused-appellant’s reliance on the ruling in Aguinaldo v. Santos[2], which states, inter alia, that –
The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people.
will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or, otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must protect itself. It also serves as an example and warning to others.

A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States v. Gustilo,[3] it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his absconding.[4]

The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his regular place of confinement.

It will be recalled that when a warrant for accused-appellant’s arrest was issued, he fled and evaded capture despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the State’s penal system.

Accused-appellant argues that on several occasions, the Regional Trial Court of Makati granted several motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:
to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue of whether to expel/suspend him from the House of Representatives;

to undergo dental examination and treatment at the clinic of his dentist in Makati City;

to undergo a thorough medical check-up at the Makati Medical Center, Makati City;

to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered plane and private vehicle.
He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises, to wit:
to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one guard and allowed to use his own vehicle and driver in going to and from the project area and his place of confinement.

to continue with his dental treatment at the clinic of his dentist in Makati City.

to be confined at the Makati Medical Center in Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an aberrant situation not only elevates accused-appellant’s status to that of a special class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard are the following observations of the Court in Martinez v. Morfe:[5]
The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would remain independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence.
The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions when he is allowed to leave jail.

We remain unpersuaded.

No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department coordination, he is also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further admits that while under detention, he has filed several bills and resolutions. It also appears that he has been receiving his salaries and other monetary benefits. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been allowed by the prison authorities at the National Pentientiary to perform these acts.

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

The Constitution guarantees: "x x x nor shall any person be denied the equal protection of laws."[6] This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.[7] The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals.[8]

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.[9]

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.[10]

Imprisonment is the restraint of a man’s personal liberty; coercion exercised upon a person to prevent the free exercise of his power of locomotion.[11]

More explicitly, "imprisonment" in its general sense, is the restraint of one’s liberty. As a punishment, it is restraint by judgment of a court or lawful tribunal, and is personal to the accused.[12] The term refers to the restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free action according to his own pleasure and will.[13] Imprisonment is the detention of another against his will depriving him of his power of locomotion[14] and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits defined by wall or any exterior barrier."[15]

It can be seen from the foregoing that incarceration, by its nature, changes an individual’s status in society.[16] Prison officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.[17]

Premises considered, we are constrained to rule against the accused-appellant’s claim that re-election to public office gives priority to any other right or interest, including the police power of the State.

WHEREFORE, the instant motion is hereby DENIED. SO ORDERED.

Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, and De Leon, Jr., JJ., concur.

Gonzaga-Reyes, J., see separate concurring opinion.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, and Mendoza, JJ., concurs in the main and separate opinion.

[1] RTC Decision, pp. 54-55.

[2] 212 SCRA 768, at 773 [1992].

[3] 19 Phil. 208, 212.

[4] Cubillo v. City Warden, 97 SCRA 771 [1980].

[5] 44 SCRA 37 [1972].

[6] Art. III, Sec. 1.

[7] Ichong v. Hernandez, 101 Phil. 1155.

[8] Skinuer v. Oklahoma, 315 US 535.

[9] See Fernando, Constitution of the Philippines, 2nd Edition, p. 548.

[10] See Felwa v. Salas, 18 SCRA 606 [1966]; Ichong v. Hernandez, 101 Phil. 1155; Dumlao v. Commission on Elections, 95 SCRA 392 [1980]; Ceniza v. Commission on Elections, 96 SCRA 763 (1980); People v. Cayat, 68 Phil. 12.

[11] Black’s Law Dictionary, Special Deluxe 5th Ed., p. 681.

[12] 20 Words And Phrases, Permanent Ed., p. 466, citing US v. Safeway Stores [Tex.] C.C.C.A. Kan. 140 F 2d 834, 839 and US v. Mitchell, 163 F. 1014, 1016 at p. 470.

[13] Ibid., p. 470, citing Pine v. Okzewski, 170 A. 825, 827, 112 N.J.L. 429.

[14] Id., p. 472, citing US v. Benner, 24 Fed. Cas. 1084, 1087.

[15] Id., citing Bird v. Jones, 4 N.Y. Leg. Obs. 158, 159.

[16] Sheldon, Krantz, 1988 Supplement. The Law of Correction and Prisoners’ Rights, 3rd Ed., p. 121.

[17] Ibid.



For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who has been convicted by the trial court of two counts of statutory rape and six counts of acts of lasciviousness, which judgment is currently pending appeal before this Court. As member of the House of Representatives, accused-appellant claims that his constituents are deprived of representation by reason of his incarceration pending appeal of the judgment of conviction and that he should therefore be allowed to discharge his legislative functions, including attendance of legislative sessions and committee meetings.

I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in holding that accused-appellant’s motion is bereft of any legal merit.

The Bill of Rights provides -
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.[1] (Underscoring supplied)
This constitutional provision denying the right to bail for offenses punishable by reclusion perpetua when the evidence of guilt is strong is reiterated in Rule 114 of the Rules of Criminal Procedure, viz -
SEC. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. – No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonemnt, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the criminal prosecution.
The trial Court found accused-appellant guilty of the crime of statutory rape, which is punishbale by reclusion perpetua. In People v. Divina[2] we held that the trial court’s judgment of conviction imports that the evidence of guilt of the crime charged is strong. Unquestionably, the continued incarceration of accused-appellant is a valid and constitutionally mandated curtailment of his rights to provisional liberty pending appeal of his conviction.

Neither may the constitutional provison granting immunity from arrest to legislators provide legal justification for accused-appellant’s motion. The Constitution states that -
A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the Congress is in session. No Member shall be questioned nor be held liable in any other place for any speech or debate in the Congress or in any committee thereof.[3]
I agree with the ponencia that to allow accused-appellant to attend legislative sessions would constitute an unjustified broadening of the privilege from arrest bestowed by the Constitution upon members of Congress. Neither the legislative history of this provison nor the general principles of official immunity support an expanded interpretation of such privilege.

Unlike the present Constitution, the 1935 Constitution[4] limited the privilege from arrests to "all cases except treason, felony, and breach of the peace." This provison was taken from the Philippine Autonomy Act of 1916, which was in turn based upon the American Constitution. In accordance with American precedents, the words "treason, felony and breach of the peace" have been construed to include all indictable offenses.[5] Thus, under the 1935 Constitution the freedom from arrest only encompassed civil arrests.

Under the 1973[6]and 1987 Constitutions, the privilege was broadened to include arrests for crimes punishable by imprisonment of six years or less. Despite the expansion of the privilege, the rationale for granting members of Congress immunity from arrest remained the same – to ensure that they are not prevented from performing their legislative duties.[7] In fact, the 1986 Constitutional Commission rejected the proposal of one of its members to expand the scope of the parliamentary immunity to include searches because, unlike arrests, it was not demonstrated that the conduct of searches would prevent members of Congress from discharging their legislative functions.[8]

It is a well-established principle that official immunity is a necessary adjunct to the vigorous and effective performance of official functions. Members of Congress, in particular, who are called upon to exercise their discretion and judgment in enacting laws responsive to the needs of the people, would certainly be impeded in the exercise of their legislative functions if every dissatisfied person could compel them to vindicate the wisdom of their enactments in an action for damages or question their official acts before the courts.[9]

It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a member of Congress from the consequences of his wrongdoings. Thus, despite the widening of its scope to include criminal offenses, the privilege from arrest is still circumscribed by the nature or the gravity of the offense of which the accused is charged. Hence, the commission of serious crimes, i.e., crimes punishable by afflictive penalties or with capital punishment, does not fall within the scope of the constitutional privilege. A member of congress could only invoke the immunity from arrests for relatively minor offenses, punishable at most by correctional penalties. As enunciated in Martinez v. Morfe,[10] "when it comes to freedom from arrest, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same."

The accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua, an afflictive penalty, is obviously not entitled to the privilege of parliamentary immunity and, proceeding from the above stated rationale for legislative immunity, a liberal construction of the constitutional privilege is not in order.

It should also be mentioned that, under the factual circumstances of this case, the applicability of this privilege from arrest to accused-appellant is already moot and academic. The constitutional provision contemplates that stage of the criminal process at which personal jurisdiction is sought to be acquired over the accused by means of his arrest. Accused-appellant is no longer at the point of merely being arrested. As a matter of fact, he has already been arrested, tried and convicted by the trial court.

Accused-appellant’s contention that his re-election constitutes a renewal of his mandate and that such an expression of the popular will should not be rendered inutile by even the police power of the State is hollow. In Aguinaldo v. Comelec,[11] Aguinaldo v. Santos[12] and Salalima v. Guingona[13] we laid down the doctrine that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove therefor. This doctrine of forgiveness or condonation cannot apply to criminal acts which the re-elected official may have committed during his previous term.[14] The administrative liability of a public officer is separate and distinct from his penal liability.

Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the Constitution itself provides for the immunities from the general application of our criminal laws which a Senator or Member of the House of Representatives may enjoy, it follows that any expansion of such immunities must similarly be based upon an express consitutional grant.

I vote to deny the motion.

[1] 1987 Constitution, Art. III, sec. 13.

[2] 221 SCRA 209 (1993).

[3] Art. VI, sec. 11.

[4] Art. VI, sec. 15. – The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the sessions of the Congress, and in going to and returning from the same; and for any speech and debate therein, they shall not be questioned in any other place.

[5] Martinez v. Morfe, 44 SCRA 22 (1972), citing Williamson v. United States, 207 U.S. 425.

[6] Art. VIII, sec. 9 – A member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions, and in going to and returning from the same; but the Batasang Pambansa shall surrender the member involved to the custody of the law within twenty-four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so. A member shall not be questioned nor held liable in any other place for any speech or debate in the Batasan or in any committee thereof.

[7] 1987 Constitution, II RECORD 90.

[8] Ibid., 178-185

[9] Mechem, F. R., A Treatise on the Law of Public Offices and Officers (1890), 431.

[10] Supra.

[11] Res., G.R. Nos. 105128-30, May 14, 1992.

[12] 212 SCRA 768 (1992).

[13] 257 SCRA 55 (1996).

[14] Salalima v. Guingona, id.

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