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Abolish the Death Penalty*

by

Hon. Artemio V. Panganiban Chief Justice of the Philippines

Magandang hapon po sa inyong lahat. I have spoken and written many times on matters related to the death penalty, but today marks the first time I shall talk about it as Chief Justice of the Philippines.

Felicitations to FLAG, the Authors, and the Netherlands

Address delivered by Chief Justice Artemio V. Panganiban during the launching of Legal Reference on Capital Cases, the latest publication of the Free Legal Assistance Group (FLAG), on May 31, 2006, 4:00 p.m., at the lobby of Malcolm Hall, University of the Philippines, Diliman, Quezon City.

Let me begin by publicly congratulating the Free Legal Assistance Group (FLAG) for its insistent, persistent and consistent stand against the death penalty. May I acknowledge that the arguments presented and the briefs filed by FLAG have provoked much of the animated deliberations of the Supreme Court, while it was in the process of ruling on the constitutionality of the Death Penalty Law.1[1] I cannot go into details, because internal deliberations of the Court are confidential. Permit me to say, however, that my Dissenting Opinions on this subject reflect many of the persuasive and passionate arguments put forth by FLAG.

While there were originally four dissenters to the constitutionality of the death penalty law, now I am sorry to say that two of them have retired and only two -- including me -- remain in the Court. The new justices appointed since 1997 have followed the majority view that the law is constitutional. Nonetheless, I urge you to continue your persevering advocacy to obliterate the capital penalty from our statute books and from the annals of our history.

1[1] The issue of the constitutionality of the Death Penalty Law (Republic Act No. 7659) was belatedly raised in Leo Echegarays Supplemental Motion for Reconsideration, which was filed by his then newly retained counsel, the FLAG. The issue was resolved on February 7, 1997. (267 SCRA 682, February 7, 1997)

Indeed, FLAG is undoubtedly the Philippines leading law group in No Death Penalty advocacy. It has been tirelessly campaigning to abolish the death penalty not only through litigation, but also via legislation and public awareness activities.

FLAG has fulfilled, and continues to fulfill, its self-imposed mandate by (1) providing free legal services in capital cases, especially to death row convicts; (2) conducting training workshops for attorneys handling capital cases; (3) inspiring young lawyers to become volunteers and providing similar free legal services to death row convicts; and (4) lobbying for the abolition of the Death Penalty Law. It has also been working relentlessly at changing public opinion and perception about the death penalty through information dissemination and researches.

Aside from citing FLAG as an organization, may I also especially commend Attys. Theodore O. Te, Ricardo A. Sunga III, Glenda B. Litong and Gilda E. Guillermo, who are the authors of Legal Reference. Judging from this four-volume easy-to-read reference guide, I am persuaded that the authors have painstakingly pored over the decisions of the Supreme Court on capital offenses, in order to consolidate the doctrines expounded.

These books contain an authoritative discussion of the four major crimes in which the death penalty is imposed: rape, murder and parricide, kidnapping, and drug-related cases. They also provide a checklist of legal requirements, as well as the quality and quantity of proof for the mandatory imposition of the death sentence.

More important, they identify, clarify and synthesize the rulings of the Supreme Court in death penalty cases from the time the Death Penalty Law was approved. Indeed, as a dissenter in some of these Decisions, I can truly say that Legal Reference captures the Courts views and positions on the imposition of the capital penalty. Consequently, the compendium is a very helpful tool not only for law students, law professors, practicing lawyers and sitting magistrates, but also for laypersons.

So too, the Royal Netherlands Embassy, which has given financial assistance to the publication, deserves appreciation. For some time now, the government of the Netherlands has been assisting the Philippines through projects ranging from poverty alleviation, to biodiversity conservation, and to the strengthening of Philippine institutions of higher education. Now comes

this generous contribution to the legal profession. Excellency, Ambassador Robert A. Vornis.

Salamat po, Your

TRO to Stop the Execution of Echegaray

In 7 of the 10 books I have thus far written, I have dedicated a chapter2[2] on capital offenses to express my repetitive dissent to the death penalty law. As you all must know, I am jurisprudentially and philosophically opposed to death.

In Leadership by Example, I recalled that on January 4, 1999, the Supreme Court issued a Temporary Restraining Order (TRO) postponing the execution of Leo Echegaray, who was scheduled to be executed at 3:00 p.m. on that very day. The TRO was promulgated upon motion of Atty.

Theodore O. Te of FLAG. He argued that several bills had been filed in


2[2] BATTLES IN THE SUPREME COURT, Chapter 4 (1998); LEADERSHIP BY EXAMPLE, Chapter 6 (1999); TRANSPARENCY, UNANIMITY AND DIVERSITY, Chapter 16 (2000); A CENTENARY OF JUSTICE, Chapter 14 (2001); REFORMING THE JUDICIARY, Chapter 22 (2002); THE BIO-AGE DAWNS ON THE JUDICIARY, Chapter 14 (2003); and LEVELING THE PLAYING FIELD, Chapter 21 (2004).

Congress to repeal the Death Penalty Law, and that a treaty abolishing the capital penalty was headed for ratification in the Senate.

Almost the entire Philippine officialdom -- from the President to the senators, congressmen, and even municipal councilors -- reacted swiftly and furiously. During instantly organized street rallies and demonstrations, lynch mobs and anti-crime crusaders demanded the resignation or the impeachment of the eight justices who had voted for the TRO. These members of the high court were attacked as incompetent, power-hungry, and insensitive to public opinion. Additionally, the magistrates and their families were threatened, insulted and booed.

To be sure, I was targeted for the most virulent of the criticisms, because in Battles in the Supreme Court -- a book I had written the year before -I had publicly opposed the death penalty. Even my daughters were not spared. Because of hate calls and bodily threats, I had to provide them with extra security. But no matter, my opposition to the death penalty remained unshaken.3[3]

3[3]

It seems the advocates of the death penalty are as active as ever. Recently, during an ambush media interview in Baguio City, I reiterated my opinion that the Death Penalty Law was unconstitutional. Immediately, I was attacked violently for prejudging the matter. Only after I

International Trend to Abolish the Death Penalty

I also mentioned in my books that the international trend is unmistakably towards the abolition of legalized killing. Article 1 of the Second Optional Protocol to the International Covenant on Civil and Political Rights states that [n]o one within the jurisdiction of a State party to the present protocol shall be executed. The United Nations has adopted this Optional Protocol as early as December 15, 1989.4[4] While the

explained in a letter to The Philippine Star columnist Max Soliven that I was merely reiterating an old view did the tirades stop. My letter was reproduced in full by Mr. Soliven in his column on April 27, 2006, as follows:
Dear Max, Re: your column today, may I clarify that I did not say anything new on the death penalty. When asked by media (ambushed is probably more accurate) here in Baguio, I replied that I maintain my opinion given in 1997 in People v. Echegaray, that the death penalty law is unconstitutional. However, I added that the majority has ruled it to be constitutional. Thus, even if I am now Chief Justice, I still follow the majority ruling that the law is constitutional. And the only way to change the law is through congressional amendment or repeal. Max, I just repeated an old view given in an old 1997 case. I was not speaking out of turn or prejudging a new controversy. I was just being consistent.

4[4]

My Dissent in Echegaray v. Secretary of Justice, 297 SCRA 754, 807-808, October 12, 1998.

Philippines -- together with 58 other states -- voted in favor of the adoption of this Protocol, it has not ratified it.5[5]

More and more states are joining the movement towards the preservation of life. On March 1, 2005, a closely divided US Supreme Court reversed an earlier ruling and abolished the death penalty for juveniles.6[6] Relying on the provisions of the 8th Amendment against cruel and unusual punishment, the US Court cited the overwhelming weight of international opinion as a partial basis for the ruling. Indeed, the number of Americans endorsing the death penalty has begun to decrease, even if -- sad to say -well over 60 percent still support it to this day.

The movement for the abolition of capital punishment began in the 18th century in some countries, like Venezuela (1863), San Marino (1865), and Costa Rica (1877). The death penalty was abolished in Great Britain (except for cases of treason) in 1971; France, in 1981; and Canada, in 1976. In 1977, the United Nations General Assembly resolved to ask its members
5[5] 6[6] Supra. Roper, Superintendent, Potosi Correctional Center v. Simmons, No. 03-633, March 1, 2005, per Kennedy, J.

throughout the world to progressively restrict the number of offenses for which the death penalty might be imposed, with a view to the desirability of abolishing this punishment.7[7] Since 2000, Chile, Yugoslavia, Serbia, Montenegro and Turkey have joined the list of abolitionist countries. Already, over half of the countries in the world have abolished the death penalty either by law or through practice.

The Harshness of the Death Penalty on the Poor

In People v. Echegaray,8[8] the Supreme Court -- by a vote of 12 to 3 -upheld the constitutionality of the death penalty prescribed by Republic Act (RA) 7659. In my Dissent, though, I pointedly lamented the failure of Congress to satisfy the constitutional requirements of heinousness and compelling reasons. More than that, I was deeply concerned that the death penalty would be especially harsh on the poor. Thus, I argued:

7[7] 8[8]

<http://www. newsbatch.com/deathpenalty.htm. 267 SCRA 682, February 7, 1997.

To the poor and unlettered, it is bad enough that the law is complex and written in a strange, incomprehensible language. Worse still, judicial proceedings are themselves complicated, intimidating and damning. The net effect of having a death penalty that is imposed more often than not upon the impecunious is to engender in the minds of the latter a sense unfounded, to be sure, but unhealthy nevertheless of the unequal balance of the scales of justice.9[9]

9[9]

In closing, my Dissents summed up the arguments against the constitutionality of RA 7659 thus:
In sum, I respectfully submit that: (1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely suspend or prohibit is imposition. (2) The Charter effectively granted a new right: the constitutional 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 statute denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged. (4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly treated or brushed aside. (5) Congressional power to prescribe death is severely limited by two concurrent requirements:
(a) First, Congress [must] provide a set of attendant circumstances which the prosecution must prove beyond reasonable doubt, apart from the elements of the crime itself. Congress must explain why and how these circumstances define or characterize the crime as heinous. (b) 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. It bears repeating that these requirements are inseparable. They must both be present in view of the specific constitutional mandate for compelling reasons involving heinous crimes. The compelling reasons must flow from the heinous nature of the offense.

(6) 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.

Erroneous Execution of Leo Echegaray

I maintain my view that the death penalty has no place in our legal firmament. Indeed, in spite of the meticulous scrutiny that the Supreme Court gives to death cases, it is still possible that an innocent person would be held legally guilty and thereafter judicially executed.10[10] As humans are imperfect, judges can make wrongful evaluations. A perfectly innocent

individual could die due to human error, not to mention the guile and deceit that could accompany trials. Once carried out, the death sentence can no longer be reversed or modified.

This opinion is not a mere sterile speculation.

It is real.

To

demonstrate this point, let me go back to Echegaray,11[11] in which -- to repeat -- the first death sentence was affirmed by the Supreme Court after Republic Act No. 7659 had taken effect.
10[10] Furthermore, the continuance of death penalty collides with the global crusade to abolish it. This fact is shown in five major international treatises: (a) the 1948 Universal Declaration of Human Rights; (b) the 1966 International Covenant on Economic, Social and Cultural Rights; (c) the 1966 International Covenant on Civil and Political Rights (ICCPR) and (d) the two Optional Protocols to the ICCPR. All these treatises are collectively referred to as the International Bill of Human Rights. 11[11] Supra.

In this case, the Information alleged that the victim was the daughter of the accused, Leo Echegaray.12[12] It was proven during the trial, however, that he was not a father, stepfather or grandfather of the victim. The Court nonetheless affirmed his death sentence.

To stress, the Information alleged that Leo, the offender, was the father of the victim. This qualifying circumstance of father-daughter relationship was not proven, however. What was proven was that Leo was the

confirmed lover of the victims mother. While Republic Act No. 7659 prescribes the capital punishment for rape perpetrated by the common law spouse of the parent of the victim,13[13] such qualifying circumstance was not alleged in the Information or Complaint.

12[12] The Information reads as follows:


The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE, committed as follows: That on or about the month of April 1994, in Quezon City, Philippines, the abovenamed accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the undersigned complainant, his daughter, a minor, 10 years of age, all against her will and without her consent, to her damage and prejudice. CONTRARY TO LAW.

13[13] See Republic Act No. 7659, Sec. 11.

As explained in your Legal Reference on Capital Cases, Volume I (on Rape), p. 62, there is need to allege [qualifying circumstances] in any information that charges rape[;] otherwise these circumstances will not be considered as qualifying, and the penalty cannot be death. More specifically, following the doctrine laid down in People v. Gallo,14[14] People v. Dimapilis,15[15] People v. Manggasin16[16] and People v. Ponado,17[17] Echegarays penalty should have been reduced to reclusion perpetua. In Gallo, the Court belatedly reduced the penalty to reclusion perpetua, even though the Decision meting out death had already become final.

But the case of Echegaray is different. He is now in the Great Beyond, and a correction of the judicial error can no longer resurrect him. I believe that the surreal outcome of this case reinforces the strongest reason why the death penalty has no place in our statute books. After the execution of the appellant, errors in its imposition become nightmarishly irreversible. Certainly, human reversals cannot affect the graveyard.

14[14] 315 SCRA 461, September 29, 1999, per curiam. 15[15] 300 SCRA 279, December 17, 1998, per Vitug, J. 16[16] 306 SCRA 228, April 21, 1999, per Mendoza, J. 17[17] 311 SCRA 528, July 28, 1999, per Vitug, J.

Those opposing the death penalty can take small comfort that only seven convicts18[18] have been actually killed by lethal injection. Since President Joseph Estradas declaration of an 11-month moratorium19[19] on executions, in deference to the Catholic Churchs Jubilee Year in 2000, no convict was put to death for the rest of the year. This no-execution policy was continued by the new administration of President Gloria Macapagal Arroyo.

The seeming reluctance of the Executive Department to implement the Death Penalty Law fully is encouraging, to say the least. Recently, at a forum of the Foreign Correspondents Association of the Philippines, President Arroyo categorically stated that she was in favor of abolishing capital punishment. She promised to push for the immediate passage of legislation to repeal or modify the Death Penalty Law.20[20]

Stringent Review
18[18] Leo Echegaray for rape on February 5, 1999; Eduardo Agbayani for rape on June 25, 1999; Dante Piandiong, Jesus Morallos and Archie Bulan for robbery with homicide on July 8, 1999; Pablito Andan for rape with homicide on October 26, 1999; and Alex Bartolome for rape on January 4, 2000. 19[19] President Estrada declared a moratorium on the executions of all convicts whose capital sentences had been affirmed by the Supreme Court. This declaration was reported by the news dailies on March 25, 2000. 20[20] Philippine Daily Inquirer, February 22, 2006, p. 2.

of Death Cases

As many of you must know, the Supreme Court respects the right and the power of the President to review death penalties imposed by final judgments, as well as to exercise her pardoning power accordingly. That is why in every Decision in which the penalty of death is imposed, a standard clause in the dispositive portion is included. The clause orders the

forwarding of the records of the death case to the Office of the President for a possible exercise of the pardoning power. This Court will continue to include that clause for as long as the death penalty has not been abolished.

There is another consolation for anti-death advocates. Even if a majority of my colleagues maintain that the Death Penalty Law is constitutional, they nonetheless review death cases with painstaking care. Since the reimposition of the death penalty in 1993 until June 8, 2004,21[21] almost 65 (to be exact, 64.61) percent of the sentences originally imposing death on the accused were modified. The modifications came in the form of either a remand for further proceedings, or a reduction of the sentence to reclusion perpetua or other lower penalties.

21[21] Data supplied by the Supreme Court Judicial Records Office.

Significantly, the lowering of the penalty was ordered in 483 cases (53.25 percent). Only in 230 of the 907 cases (or

25.36 percent) reviewed was the death sentence affirmed.22[22] Furthermore, upon automatic review, the Court acquitted 65 of those sentenced to death.

In sum, the cases in which the judgment of death has been either modified or vacated consist of an astounding 74.64 percent of the total of death penalty cases elevated directly to the Supreme Court on automatic review. That percentage translates to a total of 651 out of 907 appellants saved from lethal injection.

Intermediate Layer of Review

22[22] The pertinent statistics are as follows:


DISMISSED due to death of the accused-appellants AFFIRMED MODIFIED: a. b. c. ACQUITTED Further proceedings Reclusion perpetua Indeterminate sentence 31 483 72 65 907 26 230

for Error-Free Judgment

While the percentage of death affirmation stood at a little over 25 percent, and while the Court has been meticulous in its own review, it took another extra precaution in July 2004 when it promulgated People v. Mateo.23[23] In that case, the high court deemed it wise and compelling to provide an intermediate layer of review by the Court of Appeals (CA), before cases could be elevated to the Supreme Court for final judgment. Moreover, only death affirmations by the CA are now subjected to automatic review.24[24]

Separate Votes on Guilt and Penalty

I must add another change introduced in reviews of death cases. The Supreme Court now votes separately (1) on

23[23] GR Nos. 147678-87, July 7, 2004, per Vitug, J. 24[24] Consistent with Mateo, the Court amended Secs. 3 and 10 of Rule 122, as well as Secs. 12 and 13 of Rule 124, of the Revised Rules of Criminal Procedure in AM No. 00-5-03-SC, promulgated on September 28, 2004.

the guilt of the accused and (2) on the penalty to be imposed.25[25] Through this two-tier voting process, the Court hopes and endeavors to ensure, as much as possible, that the possibility of compassionate or mitigating factors stemming from the frailties of man are taken into account and all persons convicted of a designated offense treated as uniquely individual human beings, not as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

Conclusion

I close this address with another round of congratulations for FLAG. May you continue to be ever vigilant in your defense of death convicts and in your advocacy of the elimination of the capital penalty from our statutes. May you succeed in your legal defense and public advocacy, even if I may have failed in my own efforts to persuade my colleagues to excise this abominable punishment from Philippine jurisprudence.

Maraming salamat po.


25[25] People v. Purazo, GR No. 133189, May 5, 2003, per Bellosillo, J.; People v. Roque, GR Nos. 130659 and 144002, August 14, 2002, per Vitug