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CONCURRING OPINION

GONZAGA-REYES, J.:

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-appellants 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. Divina² we held that the trial courts 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-appellants 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.³cräläwvirtualibräry

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 Constitution⁴ 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 1973⁶ 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.⁸cräläwvirtualibräry

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.⁹cräläwvirtualibräry

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-appellants 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. Santos¹² and Salalima v. Guingona¹³ 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 officers 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.