Dear PAO,

I filed a criminal case against Motit which was decided in my favor and he was penalized for arresto mayor. Now, he is claiming that he will not go to prison because he will ask the court for community service in lieu of imprisonment. He even bragged that the said community service is his right and this will be automatically granted by the court. Is there really a community service as a penalty nowadays and is he correct in saying that its grant is a matter of right?

Alod

Dear Alod,

The law governing community service is Republic Act (RA) 11362 or the “Community Service Act.” Pursuant to Section 3 of the same law:

“Section 3. Community Service. – Article 88a of the Act No. 3815 is hereby inserted to read as follows:

“ART. 88a. Community Service. – The court in the discretion may, in lieu of service in jail, require that the penalties of arresto menor and arresto mayor may be served by the defendant by rendering community service in the place where the crime was committed, under such terms as the court shall determine, taking into consideration the gravity of offense and the circumstances of the case, which shall be under the supervision of a probation officer: Provided, That the court will prepare an order imposing the community service, specifying the number of hours to be worked and the period within which to complete the service. The order is then referred to the assigned probation officer who shall have responsibility of the defendant.

“The defendant shall likewise be required to undergo rehabilitative counseling under the social welfare and development office of the city or municipality concerned with the assistance of the Department of Social Welfare and Development (DSWD). In requiring community service, the court shall consider the welfare of the society and the reasonable probability that the person sentenced shall not violate the law while rendering a public service.

“Community service shall consist of any actual physical activity which inculcates civic consciousness, and is intended towards the improvement of a public work or promotion of a public service.

“If the defendant violates the terms of the community service, the court shall order his/her re-arrest and the defendant shall serve the full term of the penalty, as the case may be, in jail, or in the house of the defendant as provided under Article 88. However, if the defendant has fully complied with the terms of the community service, the court shall order the release of the defendant unless detained for some other offenses.

“The privilege of rendering community service in lieu of service in jail shall be availed of only once.'”

Based on the above-quoted law, community service in lieu of imprisonment is not a right of the accused. Its grant is discretionary on the part of the court. As emphasized by the Supreme Court in Peña vs. People of the Philippines, G.R. No. 261807, August 14, 2024, penned by Honorable Associate Justice Amy C. Lazaro-Javier:

“It must be emphasized, however, that the imposition of the penalty of community service is still within the discretion of the court and should not be taken as an unbridled license to commit minor offenses. It is merely a privilege since the offender cannot choose it over imprisonment as a matter of right. Further, in requiring community service, the court shall consider the welfare of the society and reasonable probability that the person sentenced shall not violate the law while rendering the service. With the enactment of Republic Act N. 11362, apart from the law’s objective to improve public work participation and promote public service, it is expected that the State’s policy to promote restorative justice and decongest jails will be achieved.”

Applying the aforecited law and jurisprudence to your situation, with the passage of Community Service Act, an accused like Motit who is sentenced with arresto mayor may now render community service in lieu of imprisonment. However, his claim that this is his right has no legal basis The grant of community service as a penalty is not automatic but discretionary on the part of the court after taking into consideration the gravity of the offense and circumstances of the case. Otherwise stated, the grant of community service instead of serving sentence in detention is a mere privilege, and not a right.

We hope that we are able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]