The Philippine Experience in Abolishing the Death Penalty1 Commission on Human Rights of the Philippines January 2007

This paper seeks to trace the history of the imposition of the death penalty and revisit the events that transpired leading up to the prohibition of the imposition of death penalty in the Philippines and relate the strategies that have been undertaken by the Commission on Human Rights as a national human rights institution in its campaign against the Death Penalty. The Death Penalty was abolished under the 1987 Constitution and became the first Asian country to abolish the death penalty for all crimes. The Philippines holds the distinction of the first country in Asia to totally abolish the death penalty only to directly 2 reintroduce it later on. Bernas in his The Constitution of the Republic of the Philippines, A Commentary relates the debates on the issue of death penalty: The constitutional abolition of the death penalty, which immediately took effect upon ratification of this Constitution, does not prevent the legislation from re-imposing it at some future time. The 1987 Constitution reads in Article III, section 19(1) that effective upon its ratification: The death penalty shall not 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 intention of the above provision as recorded in the annals of the Constitutional Commission was that upon ratification of this Constitution, death already imposed is automatically without need for any action of the presidentcommuted3.
1

Prepared by the Government Linkages Office of the Commission on Human Rights of the Philippines. This newly created office undertakes cooperation as a mode of engagement with the executive, legislative and judiciary branches of government in respect of the Commissions mandate to monitor government compliance with human rights treaty obligations particularly of its treaty reporting obligations, harmonization of domestic laws in accordance with the standards and principles set by the Seven Core International Human Rights Instruments, monitoring Philippine Jurisprudence that gives effect to the provisions of core human rights treaties, and advising administrative or executive response to implement human rights treaties. 2 It is noted that the Human Rights Committee has issued views that indirectly introduces the death penalty in a State where it has abolished the death penalty in domestic law. That is by exposing a person who is subject to extradition, expulsion, repatriation to a country that imposes death penalty for crimes that he/she is accused of or has committed. 3 Bernas, Joaquin G. (1987) The Constitution of the Republic of the Philippines: A Commentary. Manila, Philippines: Rex Book Store

The State Policy, as embodied in the 1987 Constitution is therefore, one of prohibition where the imposition of capital punishment is an exception. It is abolitionist in perspective, and embodies the core value of protecting the right to life and upholding human dignity. In 1993, a series of serious crimes, described as heinous, ensued in the early part of the Fidel V. Ramos Administration. By virtue of RA No. 7659 signed in December 1993, the reimposition of the death penalty was passed to address the rising criminality. The Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandatory while 21 are death eligible. Republic Act No. 8177 mandates that a death sentence shall be carried out through lethal injection. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs act of 2002), there were 52 capital offenses, 30 of which are death mandatory and 22 are death eligible. In 1999, President Joseph Estrada carried out the Capital Punishment and put to death seven (7) death row convicts. 1999 was a bumper year for executions which were intended to abate criminality. Instead, using the same year as baseline, criminality increased by 15.3% as a total of 82,538 (from 71,527 crimes in the previous year)..4 giving in to appeals of groups against the death penalty including the Roman Catholic Church, President Estrada issued a moratorium on execution in observance of the Jubilee year.5 The practice of not carrying out executions was then initiated and carried over to the administration of President Gloria Macapagal Arroyo. On 5 December 2003, President Arroyo announced the lifting of the de facto moratorium on executions. A rise in drug trafficking and kidnappings that victimized mainly the Filipino Chinese community was cited as one reason to sow fear into the hears of criminals.6 As executions were poised to resume in January 2004 plans were halted because of the reopening of the capital case of Lara and Licayan. The Supreme Court vacated the decision of the lower court and ordered the admission of newly discovered evidence, including testimonial evidence of two other co-accused in the same case, both of whom gave testimony exonerating Lara and Licayan from culpability.7 Since then, the administration has been issuing reprieves on scheduled executions without actually issuing a moratorium.

Role of the CHRP in the campaign against the Death Penalty

The role of the Commission on Human Rights has been undertaken with great consideration of the International Covenant on Civil and political Rights and the 1987 Constitution.
4 5

Ibid. Ibid. 6 Ibid. 7 Rueda-Acosta, Persida v., Death Penalty not a deterrent to Criminality, CHRP-EU Human Rights Dialogue: Death Penalty and Restorative Justice , 30 November Waterfront Hotel, Cebu City

Response of the Commission on Human Rights has largely drawn on its advisory, recommendatory power to advocate against the imposition of Capital Punishment. Pursuant to its constitutional mandate to monitor government compliance of its international treaty obligations on human rights and its power to recommend to Congress effective measures to promote human rights8, the Commission on Human Rights strongly opposed the re-imposition of the death penalty through resolutions and advisories: Before the Re-imposition of the Death Penalty The Commission on Human Rights vehemently objected to efforts re-imposing the death penalty through CHR Resolution A91-033 dated 8 August 19919. It cautioned against the restoration of the death penalty and recommended reforms for a more effective enforcement of penal laws. It expressed its opinion and declared that: It is not fully convinced that the death penalty is the answer to rising criminality. The proper response to criminality lies in effective law enforcement, the quick and impartial delivery of justice, and a responsive penal system. Only when such reforms are proven to be ineffective should the legislature begin to consider other alternatives to restore the death penalty. The proper response to the failure of justice system is political will effectively apprehend, prosecute rehabilitate criminals. To mete criminals the very final, irrevocable inhuman verdict of death is tantamount punishing them for the failure of system10. our to and out and to the

Through this resolution, the 1st Commission extended Four Hundred Ten Thousand Pesos (PhP 410,000) as financial support to a nongovernment organization, Free Legal Assistance Group in its representation of death convicts11.

On the Impending Execution of the First Death Row Convict In its resolution entitled Re-examination of the Death Penalty the 2nd Commission underscored the obligation to comply with international human rights instruments, particularly the International Covenant on Civil and Political Rights and the
8 9

Article XIII, Sec 18.6 & 18.17, 1987 Constitution of the Republic of the Philippines CHR Resolution A91 033 was issued in 1991 by the First Commission, composed of Chairperson Sedfrey A. Ordonez, Commissioners Hesiquio R. Mallillin, Samuel M. Soriano, Narciso C. Monteiro and Paulynn Paredes Sicam. 10 Ibid. 11 Separate Opinion of Commissioner Nasser Marohomsalic recounts the action of the previous Commission (hereinafter the 1st Commission)

Convention Against Torture, Cruel, Inhuman, Degrading Treatment or Punishment. The resolution cited studies of human rights groups that the application of the death penalty is a violation of the right to life and the right not to be subjected to torture, degrading treatment or punishment. It gave support to the argument that the death penalty does not serve as an effective deterrent to violent crimes raised the issue of discrimination against the poor: Records show that most of the people under the death sentence belong to the lower classes of society. Usually financially unable to pay for counsel, the court appoints counsel de officio for them. More often, poor persons may not receive fair trails due to incompetent, inexperienced or ineffective counsel. Thus, while the law is not discriminatory, the practical effect of the death penalty is discrimination against the poor.12 . . . It took the case of Leo Echegaray13 to exemplify the discrimination, it noted that the sad plight of the underprivileged in the Echegaray case where the crucial issue of constitutionality was woefully omitted in the trial court and in the Supreme Court until the Free Legal Assistance Group (FLAG), an NGO with expertise on the matter conducted extensive preparation, and research and presentation to the defense of the accused.14 Minors in Death Row Well entrenched in the Philippines Death Penalty Law is the circumstance of minority considered as a mitigating circumstance in the Revised Penal Code of the Philippines. In 1999, Minors in Death Row gained the attention of the public. Child Rights Center of the CHRP [CHR-CRC] in its collaborative undertakings with the Philippine Action for Youth Offenders, a loose coalition of government and non-government organizations banded together to raise awareness on the issue of Minors in Death Row. It first came to know of the situation of Minors in Death Row in Muntinlupa [the national penitentiary housing death row inmates] when member organization Philippine Jesuit for Prison Services based in Muntinlupa interviewed death row inmates. Two claimed that they were under 18 years of age at the time of the commission of their offense. In response, the Child Rights Center, together with officers of Department of Social Welfare and Development visited the two death row inmates.

12

The CHR Resolution on the Re-examination of the Death Penalty was issued on 6 March 1997 by the Second Commission, composed Chairperson Aurora Navarette Recina, Commissioners Vicente P. Sibulo, Jorge R. Coquia, Mercedes V. Contreras with a separate opinion of Commissioner Nasser Marohomsalic. 13 Ibid. note 15 14 Ibid.

CHR-CRCs intervention was to investigate the background these men in order to obtain evidence of their claim minority. The case study documented the Commissions action: The Child Rights Center has been successful in acquiring the birth certificates of a number of these youths in death row. Upon review, the Supreme Court acquitted one while in the other case, the Child Rights Center was able to find his birth certificate. True to his testimony, he was one month shy of being eighteen. The Supreme Court handed down the decision reducing his penalty accordingly. Jelly has since been moved from the confines of death row but is still serving sentence in the National Penitentiary. In one other case, the young man was proven to have been older than eighteen when he committed the heinous crime.

of to

While performing investigative work to establish minority, the Commission through its Child Rights Center prepared its independent comments to the Philippine Report on the Implementation of the Convention on the Rights of the Child. This was transmitted to the Council for the Welfare of Children for their advisement and/or consideration. On The right not to be subjected to cruel, inhuman and degrading treatment or punishment: The Center recommends the inclusion of Minors in Death Row cases in this portion of the report. Dutyholders from first contact of these children failed to secure copies of their birth certificates or establish their minority at the time of the commission on the offense. The Commission on Human Rights-Child Rights Center was able to secure the birth certificate of one of the first two cases reported which paved the way for the Supreme Court, on automatic review of death sentences, to correct this by considering the mitigating circumstance of minority. The Supreme Court acquitted the other minor. There are at least six more youths in death row and the CHR-CRC has been intervening in these cases by tracing the birth certificates of these persons and referring the same to appropriate agencies for proper action. At the onset of these cases, the Commission issued on 13 September 1999 its Advisory on the Death Penalty for Minors. This is to block the legislative proposal that would cure the occurrence of Minors in Death Row, the Second Commission stated that the said plan to lower the age of majority from 18 to 16 years old with the intention of imposing the death penalty to

minors will violate at least two international instruments on human rights, Article 6 (5) of the International Covenant on Civil and Political Rights prohibiting the imposition of the death penalty to persons under 18 years of age and the Convention on the Rights of the Child, that capital punishment nor life imprisonment shall be imposed for offenses committed by persons below 18 years of age. On the Expression of second thoughts by the Executive and the issuance of a De Facto Moratorium on Executions Human Rights Advisory CHR-A15-200015 entitled On the Abolition of the Death Penalty Law cited studies conducted on the death penalty Despite the enactment of the death penalty law and the execution of seven convicts, more heinous crimes have been committed. From January to October 1999, the reported cases of rape, which is considered as a heinous [crime] under the statute, have substantially increased. The resolution cited with favor the expression of second thoughts by then President Joseph Estrada on the imposition of the death penalty. He has commuted to life imprisonment the death sentence of prisoners in Muntinlupa [the national penitentiary where death row is housed]. It further noted that several bill proposals have been filed in Congress to abolish the measure. The Commission [called] for the ratification of the Second Optional Protocol to the International Convention on Civil and Political Rights, aiming at the abolition of the death penalty. Lara Licayan Case On January 20, 2004, 10 days before the scheduled execution of Roberto Lara and Roderick Licayan, the CHRP led by present Chairperson Purificacion C. Valera Quisumbing submitted a position paper to the Supreme Court, presenting among others, its "full support to the motion of the Public Attorneys Office (PAO) Chief, Persida Rueda-Acosta requesting the Honorable Supreme Court to reopen the case of Roderick Licayan and Roberto Lara based on testimonies of Pedro Mabansag and Rogelio de los Reyes." The CHR contended, "what will unfold during the trial by reason of their testimonies is something relevant to the innocence of Licayan and Lara."16 As a result of the Public Attorneys motion, the Supreme Court ordered the temporary suspension of the execution of Roderick Licayan and Roberto Lara on 30 January 2004, for a period of 30 calendar days from January 27.

15 16

Issued by the 2nd Commission on 19 December 2000. Acosta Speech

Human Rights Advisory on the Abolition of the Death Penalty CHRA2005-00417 The 3rd Commission restated its stand against the death penalty. Significant in this advisory was the declaration of the death penalty as a deliberate killing by the State stressing that it is unconstitutional per se for being the utmost form of torture. Monitoring International Developments on the Death Penalty as it relates to the Philippine Experience The Philippines became a State Party to the International Covenant on Civil and Political Rights State Party on 27 January 1987. The series of communications challenging the Philippine Governments action on the Right to Life Article 6.1 of the ICCPR, highlights the invaluable contribution of the Free Legal Assistance Group (FLAG) a non government organization in enriching the Human Rights Committee jurisprudence on the Philippines in its reimposition of the death penalty law. Below are summaries of the Human Rights Committees views on the issue at hand: In Piandiong, Morallos and Bulan,18 the Philippines committed grave breach of its obligations under the first optional protocol. While the Human Rights Committee declared that it could not make a finding of a violation of any of the articles of the ICCPR because of the Government went ahead and executed the authors despite the request for interim measures, the Committee concluded that the State committed grave breach of its obligation under the Protocol by putting the alleged victims to death before it could consider the communication: Succeeding communications led to a more concrete view of the reimposition of the death penalty in the Philippines. Views in Carpo19 on the consideration of the merits found violation of Article 6 Paragraph 1 in Paragraphs 8.2 8.3: . . . the Committee observes at the outset, in response to the State Partys argument that the Committees function is not to assess the constitutionality of a State Partys law, that its task rather is to determine the consistency with the covenant alone of the particular claims brought before it. a

17

CHRA2005-004 was issued on 22 March 2005 by the Third Commission headed by Chairperson Purificacion C. Valera Quisumbing and Commissioners Eligio P. Mallari, Dominador N. Calamba II, Wilhelm D. Soriano, and Quintin B. Cueto III.
18

Piandong et al v. The Philippines, Communication No. 869/1999, CCPR/70/D/869/1999 on 19 October 2000 19 Carpo et al v. Philippines, Communication No. 1077/2002, CCPR/C/77/D/1077/2002, 28 March 2003

In the present case, the Committee observes that the Supreme Court considered the case to be governed by article 48 of the Revised penal Code, according to which, if a single act constitutes at once two crimes, the maximum penalty for the more serious crime must be applied. The crimes committed by a single act being three murders and an attempted murder, the maximum penalty for murder the death penalty was imposed automatically by operation of the provisions of article 48. The Committee refers to its jurisprudence that mandatory imposition of the death penalty constitutes arbitrary deprivation of life, in violation of article 6, paragraph 1, of the Covenant... In Ramil Rayos:20 The Committees views reiterated the Carpo decision, that the task of the Committee is to determine the consistency with the Covenant of the particular claims brought before it. It ruled that the RPC as revised by RA 7659, which provides that when by reason or on the occasion of rape, a homicide is committed, the penalty shall be death. Thus the death penalty was imposed automatically by operation of article 335 of the RPC as amended. The Committee refers to its jurisprudence that the automatic imposition of the death penalty in the authors case, by virtue of article 335 of the RPC as amended violated his rights under Article 6, Paragraph 1 of the Covenant. In Rolando21 The Human Rights Committee found a violation of Article 6. But significant to note is the discussion of Individual Opinion by Committee members, Mr. Martin Scheinin, Ms. Christine Chanet and Mr. Rajsoomer Lallah (partly dissenting) on the discussion of the obligation not to re-impose the death penalty once abolished: . . . we are of the opinion that the time has come to address the question of the compatibility with article 6 of the reintroduction of capital punishment in a country that once abolished it. x x x

20

Ramil Rayos v. The Philippines Communication No. 1167/2003, CCPR/C/81/D/1167/2003 7 September 2003 21 Pagdayawon Rolando v The Philippines, Communication No. 1110/2002, CCPR/82/D/1110/2002, 8 December 2004

To any reader familiar with the issue of capital punishment, it is clear that the Committee in the quoted paragraph decided not only its position in respect of indirect reintroduction of capital punishment, where an abolitionist country sending someone to face the death penalty in another country, but also what comes to direct reintroduction by allowing in its own law for the death penalty after first abolishing it. x x x This constituted, in our view, a violation of article 6 of the Covenant. This violation is separate from and additional to the violation of article 6 established by the Committee on the basis of the mandatory nature of the death sentence. Engaging in the Death Penalty Debate and Offering solutions for a Restorative Justice: CHRPs Strategic Partnership with EU22 The European Union and the Commission on Human Rights of the Philippines jointly organized a series of human Rights dialogues on the death penalty and restorative justice in the metro cities of Cebu, Davao and Manila on November 30, December 5, and 8 2005, respectively. The dialogues aimed to provide an open forum for debate and encouraged active participation from prominent speakers and around 350 participants from various civil society organizations, human rights groups, academia, as well as from different government institutions and representatives of EU Member States. The conception of these dialogues goes back to the agreements reached at the 4th Philippines-European Commission Senior Officials Meeting (SOM) in February 2005 in Brussels. At the SOM, CHRP Chairperson Quisumbing has requested to intensify cooperation on human rights between the two institutions. The EC welcomed this step and both sides began to look into ways of working together to address human rights issues of mutual concern in the Philippines. The Dialogues on Death Penalty and Restorative Justice represent the first concrete step towards a stronger partnership between CHRP and the EC/EU in the field of human rights. The dialogue also highlighted the advantages of restorative the justice approach and the need to provide better access to justice for the poor and disadvantaged. It was emphasized that Restorative Justice is not a new concept imported from the west but it has been applied in the Philippines through indigenous forms of conflict resolution and through current probation policies especially for juvenile offenders.
22

Excerpts taken from the Executive Summary of the Final Report on Dialogues: Death Penalty and Restorative Justice, 2005

CHRP-EU Human Rights

The discussions identified that pro- and anti death penalty advocates seemed to share a common concern: the need for justice. Often, when people call for the death penalty, they are indirectly calling for effective justice. They perceive the death penalty to be the only solution to a malfunctioning criminal justice system. Crucial in the objective to improve the justice system in the Philippines is the attention to victims rights and needs as it has been widely neglected. At the end of the series of dialogues, the EU and the CHR issued a Joint Statement where they reiterated their common position against the death penalty and encouraged an increased attention to the approach of restorative justice, as a more humane and holistic way of dealing with people in conflict with the law. The dialogues came at an opportune time when the pressure was mounting for the current Philippine Government to abolish the death penalty. On 19 April 2006, in a letter to the House of Representatives and the Senate, President Gloria Macapagal Arroyo endorsed the immediate enactment of House Bill No. 4826 entitled An Act Prohibiting the Imposition of the Death Penalty. On June 24, R.A. 9346, An Act prohibiting the imposition of Death Penalty in the Philippines was signed by the President of the Philippines. Signing of the Optional Protocol Aiming at the Abolition of the Death Penalty. Last 21 September 2006, the Philippines signed the Second Optional Protocol to the ICCPR. The Senate is poised to concur with the signature of the Executive as a constitutional requirement. A letter to the Senate has been sent by the Commission to request the Office of the President to transmit the instrument of ratification. Todays challenge for the Commission on Human Rights of the Philippines and the Right to Life advocates is to campaign for the ratification of the Second Optional Protocol and institutionalize efforts towards the approach of Restorative Justice. The challenge is now to balance the issues that have been brought forth by our experience in the re-imposition of the death penalty. To close the death penalty divide by bringing together the actors in restorative justice: the victim, the offender and the community. At present, the Commission has been coordinating with the Department of Foreign Affairs and the Office of the President to effect the transmittal of the Instrument of ratification to the Philippine Senate for their concurrence.

10