Death Penalty in the Philippines

The incumbent President of the Philippines favors the reimposition of death penalty, also called capital punishment, for certain criminal cases. The lower house of Congress — the House of Representatives — has started the legislative process to enact a law reimposing the death penalty (see House Bill No. 1, proposaing a Death Penalty Law). The debate between those who support the death penalty (“reimpositionists”) and those who oppose it (“abolitionists”) is gaining momentum. With this development, it might be helpful to revisit the history and nature of death penalty in the Philippines. [Feel free to join the discussion, present the pros and cons of the pending bill, through the comment section below.]

Death Penalty is Not Unconstitutional

One argument against the death penalty is its supposed unconstitutionality. For the benefit of non-lawyers, let’s provide a brief discussion on the meaning of “unconstitutional.” All laws enjoy the presumption of being consistent with the Constitution. This simply means that anyone who questions any law has the burden of showing that the law is against a specific provision of the Constitution. The Constitution is the highest law of the land and any other laws, or portions thereof, inconsistent with the Constitution is invalid. The challenge against the law is its unconstitutionality, which means that a court’s denial of the challenge is properly a declaration that the questioned law is “not unconstitutional.” The court does not declare that the assailed law is constitutional; it simply dismisses the petition on the ground that there is no showing of unconstitutionality.

When we speak of constitutional challenges to the death penalty, it is important to distinguish between two things:

1. Is death penalty, per se, unconstitutional?
2. Is the LAW imposing the death penalty unconstitutional?

The answer to the first question (Is death penalty, per se, unconstitutional?) is simple — NO. The Constitution does not prohibit death penalty. The answer to the second question (Is the LAW imposing the death penalty unconstitutional?) is much more complicated — it depends. The Constitution allows the imposition of death penalty, provided certain conditions are met. At the heart of the death penalty debate is Article III, Section 19(1) of the Constitution, which reads:

Section 19. (1) 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.

Even a plain reading of the provision supports the view that Congress has the discretion to pass a law reimposing the death penalty for compelling reasons involving heinous crimes. So, in the debates surrounding the existing moves to reimpose the death penalty, let’s not make the mistake of arguing that the death penalty is unconstitutional. To reiterate, according to the Supreme Court, the Constitution does not prohibit the imposition of death penalty. The only way to completely abolish the death penalty is to amend the Constitution.

The Philippine experience

The Supreme Court noted in the case of People vs. Echegaray (G.R. No. 117472, 7 February 1997; unless otherwise stated, citations in this post are based on this case, which we shall simply refer to as Echegaray) that the death penalty had entered our legal system as early as 1886, through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. The most prominent person that received the death penalty is our national hero, Jose Rizal, who was executed by firing squad in 1896.

The old Penal Code was replaced by the Revised Penal Code (RPC), which took effect on 1 January 1932. The RPC provided for the imposition of death penalty in specified crimes.

Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence with the enemy during times of war, qualified piracy, parricide, murder, infanticide, kidnapping, rape with homicide or with the use of deadly weapon or by two or more persons resulting in insanity, robbery with homicide, and arson resulting in death. The list of capital offenses lengthened as the legislature responded to the emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616 added espionage to the list. In the 1950s, at the height of the Huk rebellion, the government enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law, which carried the death penalty for leaders of the rebellion. From 1971 to 1972, more capital offenses were created by more laws, among them, the Anti-Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law. During martial law, Presidential Decree (P.D.) No. 1866 was enacted penalizing with death, among others, crimes involving homicide committed with an unlicensed firearm.

The death penalty was valid even during the 1986 People Power revolution. President Corazon Aquino, pursuant to her revolutionary powers, created a Commission to draft a new constitution to replace the 1973 Constitution of President Ferdinand Marcos. A new Constitution was submitted to, and approved by the people in, a referendum. It took effect in 1987, the reason why it is oftentimes referred to as the 1987 Constitution.

The 1987 Constitution did not abolish the death penalty. It simply suspended the imposition of death penalty and granted Congress the power to reimpose it. That law came in 1993. Congress passed Republic Act No. 7659 (“An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code, as Amended, Other Special Penal Laws, and for Other Purposes”), which took effect on 31 December 1993.

However, R.A. 7659 was repealed in 2006, which means that the death penalty, pursuant to the provisions of the Constitution, can no longer be imposed because there is no enabling law. On 24 June 2006, President Gloria Macapagal-Arroyo signed into law Republic Act No. 9346 (“An Act Prohibiting the Imposition of Death Penalty in the Philippines”). It provides:

Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection, is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659), otherwise known as the Death Penalty Law, and all other laws, executive orders and decrees, insofar as they impose the death penalty are hereby repealed or amended accordingly.

Section 5 of R.A. No. 9346 specifically provides that it shall take effect immediately after its publication in two national newspapers of general circulation. This is pursuant to Article 2 of the Civil Code which provides that laws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines, unless otherwise provided. R.A. No. 9346 was published in Malaya and Manila Times, two national newspapers of general circulation on 29 June 2006. Accordingly, R.A. No. 9346 took effect on 30 June 2006. [See People of the Philippines vs. Tubongbanua, G.R. 171271, 31 August 2006]

Death penalty is not a cruel, degrading or inhuman punishment

Another argument raised against the death penalty is that it violates the constitutional prohibition against cruel, degrading or inhuman punishment. The prohibition is again found in Article III, Section 19(1) of the Constitution, which reads:

Section 19. (1) 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.

The Supreme Court, however, has consistently ruled that the death penalty is not a a cruel, unjust, excessive or unusual punishment. The death penalty is “not inherently barbaric or an unacceptable mode of punishment for crime.” The Supreme Court quoted a U.S. case ruling that “punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.”

A variation of this argument is that the penalty of death, as applied to a certain crime, is a cruel, inhuman or degrading punishment. This argument was raised in Echegaray, in which case the accused was found guilty of rape. He argued that death penalty for rape is a cruel, inhuman or degrading punishment because in rape, unlike in murder, there is no taking of life. However, the death of the victim of the crime was never a “defining essence of the death penalty in the context of our legal history and cultural experience.” The death penalty is imposed in heinous crimes “because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government, they must be permanently prevented from doing so.” There is no doubt as to the “innate heinousness of the crime of rape.” As noted by the Supreme Court in the case of People v. Cristobal ( G.R. No. 116279, 29 January 1996):

“Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act xxx an outrage upon decency and dignity that hurts not only the victim but the society itself.”

No need to show deterrence to crime

Another argument against the reimposition of death penalty is the absense of proof that death penalty serves as an effective deterrent against crimes. Vice-President Leni Robredo recently questioned why the death penalty bill was passed by the House Committee on Justice “even though its proponents failed to show sufficient evidence and studies to support how the death penalty is deterrent to crimes.”

There is, however, no need to support the bill with any statistics showing the deterrent effect of the death penalty. The Supreme Court in Echegaray that there is no constitutional requirement that the death penalty be first proven to be a deterrent.

The abolitionists in congress insisted that all criminal reforms first be pursued and implemented before the death penalty be re-imposed in case such reforms prove unsuccessful. They claimed that the only compelling reason contemplated of by the constitution is that nothing else but the death penalty is left for the government to resort to that could check the chaos and the destruction that is being caused by unbridled criminality. Three of our colleagues, are of the opinion that the compelling reason required by the constitution is that there occurred a dramatic and significant change in the socio-cultural milieu after the suspension of the death penalty on February 2, 1987 such as an unprecedented rise in the incidence of criminality. Such are, however, interpretations only of the phrase “compelling reasons” but not of the conjunctive phrase “compelling reasons involving heinous crimes”. The imposition of the requirement that there be a rise in the incidence of criminality because of the suspension of the death penalty, moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a requirement that the death penalty first proves itself to be a truly deterrent factor in criminal behavior. If there was a dramatically higher incidence of criminality during the time that the death penalty was suspended, that would have proven that the death penalty was indeed a deterrent during the years before its suspension. Suffice it to say that the constitution in the first place did not require that the death penalty be first proven to be a deterrent; what it requires is that there be compelling reasons involving heinous crimes.

To be strict about it, therefore, the absence of proof that the death penalty deters the commission of crimes is not a valid ground to question the validity of the death penalty itself, or any law passed to reimpose the death penalty.

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