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Whenever a court has knowledge of any act which it may deem proper to repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be made the subject of legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the degree of malice and the injury caused by the offense.


This article is about two things.

  • Firstly, it refers to an act which is wrong but not a crime.
  • Secondly, it also about excessive penalty.


For the first item, it simply says that the act, although wrong in itself, cannot be considered a crime because there is no law yet punishing it.

Did you remember the maxim?

There is no crime when there is no law punishing it?

That is exactly the basis of this article.

So, whenever, there is an incident like that, and a case is filed before the court, the judge will dismiss the case and will write to the President to tell him that you need to make a law for this so that whoever will commit this mistake again shall have no more escaped.


In cases of excessive penalties…

The second paragraph of Article 5 requires that –

  1. The accused must be adjudged guilty;
  2. The penalty appears to be excessive because
    1. the accused acted with lesser degree of malice
    2. there is no injury or the injury caused is less
  3. The court must not suspend the execution of sentence
  4. The Judge shall write to the Chief Executive, through the Secretary of Justice, to recommend EXECUTIVE CLEMENCY. 




The accused whipped his negligent son. When his wife intervened to stop him from beating his son. He unknowingly pushed her to the wall where she bumped her head. Because of the impact, she fell on the floor unconscious. Then, they brought her  right away to the hospital where she died afterwards.

The accused was charged with parricide and sentence to Reclusion Perpetua.

This is a clear case of excessive penalty considering that the accused had no intent to kill his wife.


However, Article 5, applies only to acts mala in se.


If an felony committed is mala prohibita, the accused cannot claim a discount on the penalty given.



A drug pusher defended before the court that he sell drugs out of poverty. Again, drug pushing is an acts mala prohibita. Therefore, he cannot claim relief under Article 5. The right penalty must be given.


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