New code to replace ‘archaic’ penal code

MANILA, Philippines - Government prosecutors would be allowed to appeal an acquittal or dismissal when a draft new criminal code replaces the 1930-vintage Revised Penal Code.

“Innovations” would range from “gender-neutral” provisions on marital infidelity to lower age limit for criminal prosecution.

It would also remove distinctions between “accomplices” and “accessories” for offenders and the terms “frustrated” and “attempted” in offenses.

Speaking during a forum yesterday, Assistant Secretary Geronimo Sy, Department of Justice  Criminal Code Committee chairman, said they aim to have Congress pass the draft criminal code by 2016 and for it to take effect in 2017.

Sy said it would be updated, modern, simplified, responsive and “truly Filipino.”

“Our law should keep up with the times,” he said.

“The 1932 Revised Penal Code is an injustice in itself. How can you have a criminal code that’s not simplified?” 

Double jeopardy

Sy said a prosecution appeal under the draft  criminal code of an acquittal or dismissal involving crimes punishable with imprisonment of more than 12 years is not considered double jeopardy when the state is denied due process; when the case is dismissed on outside evidentiary considerations or bias or prejudice arises from an extrajudicial source.

Assistant Solicitor General Marissa Macaraig-Guillen said the draft criminal code seeks to address the current “appellate asymmetry” in that only the accused is allowed to file an appeal all the way to the Supreme Court.

At present, the state has no instrument except through petition for certiorari, she added.

Retired Sandiganbayan presiding  justice Ernesto Sandoval said the provision could endanger the draft code as “double jeopardy” is guaranteed under the Constitution.

It might cause some quarters to question the draft code’s constitutionality, he added.

Marital infidelity

Sy said the code would remove gender bias in the distinction between the crimes of concubinage and adultery.

The two would be merged into one offense: marital infidelity or sexual infidelity, Macaraig-Guillen said.

She said the distinction between adultery and concubinage under the Revised Penal Code “punishes the woman more.”

It is more difficult to establish concubinage, the marital infidelity of the husband, she added.

Macaraig-Guillen said husband and his mistress would have to cohabit in public for the offense to be established.

On the other hand, a woman is deemed to have committed adultery every time she has intercourse with a man not her husband, she added.

Age limit for prosecution

A 13-year-old offender under the draft criminal code does not incur criminal liability.

It defines a minor to include a person under 18 or those older but is unable to fully take care of himself from abuse, neglect, cruelty, exploitation or discrimination due to physical or  mental disability or condition.

An offender aged 13 and under 18 would have to be subjected to appropriate criminal proceedings if the offense he is accused of is punishable with life imprisonment.

Macaraig-Guillen said this would be the case in “extraordinary circumstances” or in instances of grave offenses.

It is consistent with existing international instruments, which bear that the age of criminal liability cannot be fixed because of circumstances and peculiarities in different countries, she added.

The new age limit is a “compromise” in balancing the need to address the rights of the minor offender and those of the victims of crimes, Macaraig-Guillen said.

Lawyer Tricia Clare Oco of the government’s Juvenile Justice and Welfare Council opposes it.

“The age limit should remain at 15 years old,” she said.

Oco said criminal gangs are using children, and that the government must go after these gangs instead of the child offenders.