Cardinal Luis Antonio Tagle of Manila speaks with inmates during a visit to Manila City Jail on Holy Wednesday, March 23. (CBCPNews photo/Roy Lagarde)
By Atty. Jo Aurea M. Imbong
THE Death Penalty was “abolished” under the 1987 Constitution and with that, the Philippines became the first Asian country to abolish the death penalty for all crimes. The 1987 Constitution reads: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.” (Article III, Section 19 [1] )
Note that as worded, Congress may restore the death penalty at some future time. But on what condition? The Constitution itself provides the criteria for Congress to so act: One, “compelling reasons”; two, “heinous crimes.”
That was 1987. Something happened six years later. On December 13, 1993. R.A. 7659, the “Death Penalty Law” law was passed , imposing a progressive penalty of Reclusion Perpetua to death for heinous crimes. Question: What crimes were listed as “heinous?” The law enumerates: Treason, Piracy, Qualified Bribery, Plunder, Murder, Parricide, Infanticide, Kidnapping for ransom, Robbery with violence against persons, Arson, Rape committed under specific circumstances, Carnaping, when the owner, driver or occupant of the motor vehicle is killed or raped, Violations of the Dangerous Drugs Act.
We should also ask: Was the re-imposition of capital punishment based on “compelling reasons” as required by the Constitution? According to one of the “Whereas” paragraphs of the law—
“ . . . an alarming upsurge of such crimes which has resulted in the loss of human lives and wanton destruction of property but also affected the nation’s efforts towards sustainable economic development and prosperity while at the same time has undermined the people’s faith in the Government and the latter’s ability to maintain peace and order in the country . . .”
The law listed those crimes “by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity . . . repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.”
From then on, the death sentence consisted in putting the person under sentence to death by electrocution. It had a mitigating factor by requiring that so far as possible, the sufferings of the person under the sentence during electrocution as well as during the proceedings prior to the execution should be minimized. If the person under sentence so desires, he shall be anaesthetized at the moment of the execution. The same law also provided that as soon as facilities are ready, the method of carrying out the sentence shall be through gas poisoning. There were exceptions. Death penalty shall not be imposed—
1. When the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age, or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty;
2. Execution shall be suspended when the convict is a woman while she is pregnant or within one (1) year after delivery, nor upon any person over seventy years of age.
Three years after, another law was passed strengthening the death penalty. On March 20, 1996, Republic Act No. 8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT was passed.
In 1994, one Leo Echegaray was found guilty of assaulting his 10-year old stepdaughter. The date of the crime was never established, the forensic evidence was inconclusive and there were no corroborating witnesses. Echegaray, a house painter from a poor Manila neighborhood, maintained that he was innocent and had been framed because of a family land dispute.
The lawyers of the convict contested in the Supreme Court the legality of the death penalty, in light of the 1987 Constitution, but their efforts failed. And so, for the first time in 23 years (that is, since Martial Law days), the death penalty was carried out in the Philippines. Leo Echegaray, 39, died shortly after 3 p.m. on February 5, 1999 having been injected with lethal chemicals at the execution chamber of the New Bilibid Prison. At one point before carrying out his execution, his lawyers asked for a Temporary Restraining Order which was granted by the Supreme Court, delaying only the date of his execution. The Supreme Court decision upholding the TRO (and the law itself on death by lethal injection) is significant, not for the decision of the majority court, but for the separate dissent of two Justices who maintained to the end that the law on death by lethal injection is unconstitutional.
Prohibited again — On June 24, 2006, seven years after the execution of Echegaray, Pres. Gloria Macapagal-Arroyo signed into law R.A. 9346, PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES. The law provided that reclusion perpetua, or life imprisonment shall be imposed instead on heinous crimes.
The new administration — At his first press conference after the May 9 elections, Pres. Rodrigo Duterte said he wanted Congress to restore the death penalty “by hanging”, for convicts involved in illegal drugs, gun-for-hire syndicates, and those who commit “heinous crimes” like rapists, robbers or car thieves who kill their victims. In his own words— “Para ma-discourage ang tao mag-commit ng crime because there is the death penalty. Iyong death penalty to me is retribution. Magbayad ka sa ginawa mo sa buhay na ‘to.”
As though taking a cue from the President’s statement, on July 26, 2016, prospective House Speaker Pantaleon Alvarez and Capiz Rep. Fredenil Castro authored House Bill No. 1 to repeal RA 9346 so as to restore the death penalty through lethal injection. The crimes identified as heinous include the crimes in the previous law, RA 8177, namely— Plunder, Treason, Qualified Piracy, Parricide, Infanticide, Bribery, Kidnapping, Illegal detention, Robbery, Arson, Rape, Carnaping, and (the obligatory) Drugs-related cases. To this list, HB 01 added three more crimes: Terrorism , Human trafficking & Illegal recruitment.
What compelling reasons impel the filing of HB 01? According to its authors, “there is evidently a need to reinvigorate the war against criminality by reviving a proven deterrent coupled by its consistent, persistent and determined implementation, and this need is as compelling and critical as any,” adding that “the imposition of the death penalty for heinous crimes and the mode of its implementation, both subjects of repealed laws, are crucial components of an effective dispensation of both reformative and retributive justice.”
Cong. Alvarez and Cong. Castro point out that the national crime rate has grown to an “alarming proportion” that it requires an “all-out offensive against all forms of heinous crimes.” In the Senate, Sen. Manny Pacquiao has also filed bills seeking to re-impose the death penalty for heinous crimes involving illegal drugs, kidnapping and aggravated rape. In the good Senator’s words, “You commit a crime – you must pay for it. But the punishment must be commensurate to the crime committed.” The Senator also added that the death penalty “has legal and biblical basis.” Senator Panfilo Lacson also filed a bill providing for the penalty of lethal injection for similar crimes. “[A] death penalty law is appropriately necessary due to the alarming upsurge of such crimes,” he said.
Let us examine the arguments for its re-imposition.
1. Deterrence—The Public Attorney’s Office (PAO) cites a study on death penalty in the Philippines, where Amnesty International found out that: 1) innocent people may be sentenced to death through judicial error; 2) death penalty is the ultimate cruel and inhuman punishment; and 3) it has no unique deterrent effect.
2. Upsurge of crime—In more recent news it is reported that the present administration’s crackdown on illegal drugs and criminality has pulled down crime rates nationwide, the Philippine National Police (PNP) claimed last August. At one Senate inquiry on drugs-related killings, PNP Director Ronald dela Rosa said index crimes nationwide went down by 31 percent—from 17,105 incidents in July 2015 to 11,800 in July this year. The PNP defines index crimes as crimes against persons (rape, murder, homicide, etc.) and crimes against property (robbery, theft, etc.). Director Dela Rosa said rape cases saw the most significant decrease at 49 percent, presenting the trend in graphic terms, thus:
The Police Head also said that the nationwide daily average of focused crimes also slid by 49 percent, from 499 incidents in the second semester of 2015 to 256 cases during the same period this year. The generally improving crime situation, he said, is also reflected by daily crime trends which reached a peak of 353 cases on July 4, but dipped to 23 incidents on August 21.
Apparently, this was also the crime situation when Congress in the 1990’s debated whether or not to re-impose the death penalty. In those debates , statistics from the Dangerous Drug Board indicated that in 1987— the year when the death penalty was abolished—the persons arrested in drugs-related cases were 3,062, and the figure dropped to 2,686 in 1988. But in 1987, when the death penalty was abolished, as far as the drug-related cases are concerned, the figure continued a downward trend, and there was no death penalty during this time, from 1988 to 1991.
3. Sen. Manny Pacquiao believes that the bill has legal basis. On this, we refer to the discussion of Justice Panganiban in his Separate Opinion in People of the Philippines vs. Leo Echegaray y Pilo (G.R. No. 117472, February 7, 1997). There, the good Magistrate wrote that the 1987 Constitution did not merely suspend or prohibit imposition of the death penalty. Rather, he held the position that:
1) The 1987 Constitution abolished the death penalty from our statute books
2) The Constitution effectively granted a new right: the constitution right against the death penalty, which is really a species of the right to life.
3) Any law reviving the capital penalty must be strictly construed against the State and liberally in favor of the accused because such a stature denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged. x x x
4) Congressional power (to restore the death penalty) is severely limited by two concurrent requirements:
5) First, Congress must provide a set of attendant circumstances apart from the elements of the crime and itself, and explain why and how these circumstances define or characterize the crime as “heinous”.
6) Second, Congress has also the duty of laying out clear and specific reasons which arose after the effectivity of the Constitution compelling the enactment of the law. The compelling reason must flow from the heinous nature of the offense.
7) In every law reviving the capital penalty, the heinousness and compelling reasons must be set out for each and every crime, and not just for all crimes generally and collectively.
In past Senate debates, then Senator Francisco Tatad pointed out that the death penalty bill violates the country’s international commitment in support of the worldwide abolition of capital punishment since the Philippines is a signatory to the International Covenant on Civil and Political Rights and its Second Optional Protocol. PAO has argued that imposing the death penalty violates the right to equal protection of the poor; that it is imposed disproportionately upon those whose victims are rich and influential, and upon offenders who are poor and uneducated.
The Free Legal Assistance (FLAG) Group’s “Profile of 165 Death Row Convicts” found that the death penalty militates against the poor, the powerless and the marginalized. The Profile, based on age, language and socio-economic situations, shows that RA 7659 ( re-imposing the death penalty in 1993) has worked against the poor and the powerless — those who cannot afford the legal services necessary in capital crimes, where extensive preparation, investigation, research and presentation are required. As expected, the Commission on Human Rights opposed the re-imposition of the death penalty. In its view, the State Policy, as embodied in the Constitution is abolitionist in perspective, and embodies the core value of protecting the right to life and upholding human dignity.
4. Does the death penalty have biblical basis? Some advocates of the death penalty are of the opinion that “an eye for an eye, a tooth for a tooth” means that retribution must equal the crime; that what it means is “a life for a life.” One reason offered is that, “If I seriously injure or kill another, I must also be seriously injured or killed. Killing is wrong, however, the Bible says it is right.”
Does Holy Scripture talk of retribution? Far from it. In the context of biblical law, “an eye for an eye, a tooth for a tooth” is meant to emphasize the grave and terrible nature of injuring or killing another human being. The passages cited to restore the death penalty are known as the lex talionis—the law of retaliation. This law of retaliation was used by the early Babylonians to limit retaliation and stop the unending feuds, so it meant, “take only an eye for an eye.”
Lex talionis is borrowed by ancient Israelites, but in the context of the Torah and God’s covenant, the phrase takes on a different meaning. The so-called law of talion can be understood “to mean that monetary compensation equal to the injury is to be paid.” In short, restoration is the goal. The phrase “an eye for an eye” is not to be taken literally as retaliation.
Similar figurative language is used in Holy Scripture. In Matthew 5:29: “If your right eye causes you to sin, tear it out and throw it away.” The meaning of this phrase is not literal so that, in terms of personal injury or death, “an eye for an eye” means those no recompense—no sacrifice or restitution on part of the offender—is too great. In other words, compensation must be given, but the offender is called also to seek forgiveness and atone for the wrong done. “A life for a life” indicates that someone who kills another must give all of his life over to the restitution of the victims.
Holy Scripture talks of restoration, not vengeance. More than expressing the extreme gravity of the deed, Scripture emphasizes—and even commands—the need to repair the harm done. Without restitution, the condemnation of a vile deed will remain simply a condemnation with no redeeming end in sight. God’s call to us, however, is a call to restore brokenness rather than to destroy the sinful person. Remember the call of Jesus to the woman caught in adultery?
There is more to the imperative of restoration. In Matthew 5:38-39, Jesus proclaims—“You have heard that it was said, “an eye for an eye and a tooth for a tooth. But I say to you, offer no resistance to one who is evil. When someone strikes you on your right cheek, turn the other one to him as well.”
Christ did not resist when he was arrested in the Garden of Gethsemane. When temple guards and chief priests arrive, one of the disciples, Peter, strikes a servant of the high priest and cuts off his ear. Jesus immediately heals the servant. At the moment when he is suffering an injustice, betrayed and falsely arrested, Jesus heals a member of the arresting delegation. Jesus refuses to retaliate against those who arrest, accuse, convict, and cry out for his execution—but his refusal accomplishes our salvation. His way of non-retaliation puts in place God’s loving answer to our rejection of God (the root of sin). More than that, His way of peace accomplishes something good. How?
“Turning the other cheek” is a way to respond with good. It is not cowering and hiding; it is not backing down. Turning the other cheek is “standing up straight so that the injustice can be seen plainly, for hitting back only keeps the evil in circulation.” Forgiveness allows a person to take control of his own life, no longer controlled by the evil acts of the murderer. The gospel-based convictions of the civil rights movement attributed to Martin Luther King, Jr. say it all: “Non-violent resistance is not a method for cowards; it is directed against forces of evil rather than against persons who happen to be doing the evil . . . It avoids not only external physical violence but also internal violence of spirit.”
Turning the right cheek is directed against the forces of evil rather than against persons. Turning the right cheek avoids not only external physical violence but also internal violence of spirit. Turning the right cheek is not meant to annihilate the offender. Turning the other cheek is loving your enemies! In the words of The Word: “Love your enemies, and pray for those who persecute you.” (Matt 5:44)
Like “turning the other cheek,” loving our enemies and those who persecute us is not a passive response. It is, rather, taking action for the good. (Matt. 5:43-48). Note that love is not necessarily liking a person; it is not accepting another person’s sinful actions.
Loving our enemy is wanting and working for another person’s good. It is seeing the goodness of others. We do not have to like them, nor accept what they do or have done. Loving our enemy is assertive and does not ignore the wrongs done.
Loving our enemy is mercy. And mercy does not contradict justice. Mercy is wanting another person to be free of his own injustice. The mercy of requiring compensation rather than death enables the offender to live to restore what cannot be restored, a burden so understandably great since the person will never be able to do enough. But it is a burden that opens the possibility for acting meaningfully and deeply for another.
A final query is, will the permanent annihilation of the offender bring true peace to victims? That question should bother us. Crucial in the equation for restorative justice is the attention to a victim’s rights and needs. It must carry with it victims’ peace. In wielding restorative justice, penalty for crime should address both the offender and the victim. “In this way, authority also fulfils the purpose of defending public order and ensuring people’s safety, while at the same time offering the offender an incentive and help to change his or her behaviour and be rehabilitated.” (Evangelium Vitae)
Man has yet to invent a better fountain of justice side-by-side with the courts. It is a wellspring of peace where justice will bloom only when we can prevent reason to be blown away by the winds of rage.
The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the mother of unfairness. To borrow from PAO, “death penalty is legalized murder. Being a crime itself it cannot, and can never solve the crimes in our society.”
After all, no human being is illegal.