Davao’s 1936 jueteng ordinance

Don’t look now but Davao, then a booming abaca town, passed a local edict against jueteng, an illegal game of chance, a year before it became  city. Ordinance No. 394, which prohibited the playing of jueteng, was approved by the municipal council on February 12, 1936.

Under the fiat, any person directly or indirectly involved in jueteng, “knowingly and without lawful purpose has in his possession any lists, paper or other matter containing letters, figures or symbols which pertain to, or are in any manner used in, the game of jueteng or any similar game which has taken place or is about to take place” was subject to punishment.

The schedule of penalty under the edict had three categories: (i) imprisonment of up to two months and a maximum fine of P100 for a payer; (ii) imprisonment of up to four months and maximum fine of P150 for a collector; and (iii) imprisonment of up to six months and maximum fine of P200 for a master or banker. The ordinance also defined the paticipants in the game as “any person who participates in the game by betting, wagering or staking money or anything of value: collector is any person who collects money for betting on the game, prepares, carries, or in which possession is found any list, paper, or any matter pertaining to, or in any manner used, in the game: master is any person who keeps, maintains, has charge or possession, or controls the house where the game is played, or who knowingly permits any property, owned by him, to be used for playing the game: banker is any person who directly makes the play, receives lists, papers or matters pertaining to, or is in any manner used in, the game.”

The first test case of the ordinance, created while the U.S. Constitution was still in effect throughout the islands, was contested by the people of the Philippines. Chong Hong and his fellow defendants, charged with jueteng under the ordinance before the Court of First Instance and described by the lower court as recidivists, won the case by dismissal. This was appealed to the high court in case G.R. No. L-45363, decided on June 13, 1938, by Justice Jose P. Laurel, who would become wartime president of the islands.

Central to the appeal case was the issue of conflict of law. In his ruling, Justice Laurel pointed out that the municipal council was empowered under Section 2625 (jj) of the Revised Administrative Code to enact local laws, including the setting of penalties, and the ordinance is a takeoff from Article 195 of the Revised Penal Code, saying:

“It is admitted that jueteng is already prohibited and penalized in article 195 of the Revised Penal Code. But the fact that an act is already prohibited and penalized by a general law does not preclude the enactment of a municipal ordinance covering the same matter. The rule is well-settled that the same act may constitute an offense against both the state and a political subdivision thereof and both jurisdictions may punish the act, without infringing any constitutional principle. Indeed, this principle is impliedly accepted in our Constitution by the limitation provided that ‘If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.’

“The court below, however, lays emphasis on the claim that the ordinance before us is in conflict with law. Conformity with law is one of the essential requisites for the validity of a municipal ordinance. But fatal inconsistency is not disclosed by an examination of the law and ordinance involved. Both article 195 of the Revised Penal code and municipal ordinance No. 394 prohibit and penalize the playing of jueteng. The difference lies in the details and the penalties imposed. The ordinance distinguishes between a “player”, a “collector” and a “master or banker” and prescribes a different penalty for each class. The saw, upon the other hand, prescribes a penalty common to all classes. This distinction apparently was made necessary by the peculiar conditions of the locality. At any rate, the enlargement upon the provision of a statute of the state, as by the imposition of additional penalties, does not result in inconsistency.”

As a recidivist, the Supreme Court pointed out that the local edict did not cite recidivism (‘a tendency to relapse into a previous condition or mode of behavior especially: relapse into criminal behavior’) which, generally, should have been treated more severely under the law, adding this oversight could be considered as “not indicative of inconsistency,” adding the “defect pointed out [in the dismissal] cannot, however, be corrected by judicial interpretation.”

In fine, justice Laurel wrote, “As ordinance No. 394 of the municipality of Davao is valid, the court below erred in dismissing the case against the appellees herein. the order appealed from is, therefore, reversed and the case should be… remanded to the court of origin for trial on the merits and decision in accordance with law. Costs against the appellees. So ordered.”

Chief justice Ramon Avanceña and associate justices Antonio Villa-Real, Jose Abad Santos, Carlos Imperial, Anacleto Diaz and Roberto Concepcion concurred with the verdict.