DEATH PENALTY AND ‘MOST SERIOUS CRIMES’

The reintroduction of the death sentence for drug-related offences in

the Philippines

CHR (V) A2022-002

I. INTRODUCTION

The right to life is considered as a supreme right 1 and the fountain2 from
which all other human rights emanate. While the right to life inheres in every
individual, a reading of Article 6 of the International Covenant on Civil and
Political Rights (ICCPR) would imply that some deprivations of life might be non-
arbitrary. Consequently, the right to life is a right that is not absolute 3.

In the Philippines, the right to life is not only a moral precept but also a well-
established legal concept protected under the 1987 Philippine Constitution 4.
However, our commitment to this moral-legal principle has been put to the test
several times.

The death penalty, as a form of punishment, was utilized during the

dictatorial regime of President Ferdinand Marcos, Sr. After the restoration of
democracy in 1986, the Philippines was the “first Asian country to abolish the
death penalty for all crimes”5. Because of this, death sentences that were already
given were reduced to reclusion perpetua or life imprisonment. Nevertheless,
capital punishment was reinstated in December 1993 through the enactment of
Republic Act No. 7659 or the Death Penalty Law.

Over a decade later, RA 9346 or An Act Prohibiting the Imposition of Death

Penalty in the Philippines was legislated. In effect, it repealed RA 8177 or the law
designating death by lethal injection as well as RA 7659 and all other laws insofar
as they impose the death penalty. In 2006, the Philippines signed the Second
Optional Protocol to the ICCPR, which completely and perpetually bans the
imposition of the death penalty. In November the next year, the Second Optional
Protocol was subsequently ratified.

1
General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights on the Right to Life, adopted
by the Human Rights Committee on its 124th Session on 8 October 2018 to 2 November 2018.
2
Report of the UN Special Rapporteur on Summary and Arbitrary Executions, 31 January 1983.
3
General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life, par. 16.
4
Some of these constitutional provisions are the following: Section 12 of Article II and Section 1 of Article III.
5
Amnesty International, “Philippines – Death Penalty: Criminality, Justice and Human Rights”, 21 October 1997.

CHR: Dignity of all

Commonwealth Avenue, U.P. Complex, Diliman 1101 Quezon City Philippines
Tel. Nos. (02) 294 8704 (02) 925 3886
 Although the attempts to reintroduce the death penalty in the Philippines
have failed under the 18th Congress, there continues to be a strong momentum for
its return.

The Philippines has been through this motion before and the arguments
have become too familiar. On the one hand, the motivation for the policy proposal
for the reintroduction of the death penalty is the basic assumption that having a
law imposing capital punishment will serve as deterrent to the commission of
heinous crimes, particularly those involving illegal drugs. This notwithstanding the
fact that there is no credible evidence that the death penalty is more effective in
deterring drug crimes any more than life imprisonment. On the other hand, human
rights advocates and allied groups vigorously oppose it on the bases that death
penalty has not been proven to effectively prevent crimes, it is an anti-poor
measure, it is contrary to treaty obligations that the Philippines ratified, and its
imposition does not sufficiently satisfy the acceptable grounds for the deprivation
of life under international law as its application should be strictly limited to the
most serious crimes.

In contrast to previous attempts is the incontrovertible fact that the

Philippines is now a State party to the Second Optional Protocol to the
International Covenant on Civil and Political Rights – a treaty that does not allow
withdrawal or derogation, and without any reservation. Moreover, the Philippines
is also party to other treaties that are incompatible with having a death penalty law
for offenses such as illegal drugs.

This Advisory will explore the Philippines’ legal obligations within their
domestic jurisdiction and within the international framework. Specifically, an
examination of the Constitution itself, various draft bills, as well as how the
Philippines is perceived regarding this by the international community leads us to
this conclusion - that the crimes enumerated under the proposed bills do not
satisfy the definition of "most serious crimes" and thus, the passage of such bills
will be a derogation of the Philippines' obligations under the ICCPR.

II. DOMESTIC LEGISLATION

A. Relevant Laws/Bills

The Philippines is a State Party to the Second Optional Protocol to the

ICCPR and was ratified without any reservation that stipulates for the complete
and permanent abolition of the capital punishment within the territory of the State
party.6 In acceding to this treaty, our country bound itself unconditionally to
permanently end or abolish the imposition of the capital punishment.

Articles 1 and 2 of the Second Optional Protocol to the ICCPR provide that
“1. No one within the jurisdiction of a State Party to the present Protocol shall be
executed. 2. Each State Party shall take all necessary measures to abolish the
death penalty within its jurisdiction.” The language of Article 1 of the Second
Optional Protocol to the ICCPR is clear - It does not provide any condition that
death penalty shall not be applied only to certain types of crimes. It simply means

6
Second Optional Protocol to the ICCPR, Article 1.

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that no one shall be executed regardless of the crime committed by the offender
within the territory of the State party.

To further affirm the ratification of the Second Optional Protocol following

its 2006 signature, the Philippine Congress introduced RA 9346 (the ‘Act’),
prohibiting the imposition of the death penalty in the Philippines. However, House
Bill 4727 (‘HB 4727’), which sought to repeal this Act, 7 was passed by the House of
Representatives on 7th March 2017. The bill sought to reinstate the death penalty
for ‘heinous crimes,’ defined as ‘grievous, odious, and hateful offences, which by
reason of their inherent or manifest wickedness, viciousness, atrocity, and
perversity are repugnant and outrageous to the common standards and norms of
decency and morality in a just, civilized, and orderly society.’8 HB 4727 has since
made no further progress.

Currently, the proposed measure at the forefront of the Philippines' push to

reintroduce the death penalty is House Bill 7814 (‘HB 7814’).9 This bill was passed
by the House of Representatives on 2nd March 2021, but has not made any
progress in the Senate. HB 7814 seeks to ‘strengthen’ the RA 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, by creating a
presumption of guilt for those accused of drug offences. 10 It also aims to
reintroduce the death penalty as a means of punishment for those found guilty of
certain drug offences. All of the drug-related ‘heinous crimes’ that are included in
HB 4727 are also included in HB 7814, with the addition of crimes for those who
finance a drug offence and those who coddle or protect a drug offender.11 Under
the proposed HB 7814, the death penalty can be imposed as punishment for the
following crimes:12

• The importation of dangerous drugs;

• The sale, trading, administration, dispensation, delivery, distribution,

and transportation of dangerous drugs;

• The maintenance of a den, dive, or resort where any dangerous drug is

used or sold;

• The manufacture of dangerous drugs;

• The possession of 10 grams or more of dangerous drugs;

• Financing a drug offence, including the sale, trade, administration,

dispensation, delivery, distribution, and transportation of any dangerous
drug;

• Coddling a drug offender, which includes shielding, harbouring,

screening or facilitating someone not in their immediate family to escape
arrest. Additionally, it includes preventing the arrest, prosecution, or

7
House Bill No. 4727 (Philippines) preamble (‘Bill 4727’).
8
Republic Act No. 7659 (Philippines) preamble at para. 2.
9
House Bill No. 7814 (Philippines) preamble.
10
Id.
11
Id. § 1(ee).
12
Id.

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 conviction of someone who a person has reasonable grounds to believe
has violated provisions of the Act;

• Possessing any dangerous drug during a party, of at least two (2) persons,
regardless of the quantity and purity of such dangerous drugs; and

• Any person who is found guilty of “planting” any dangerous drug and/or
controlled precursor and essential chemical, regardless of quantity and
purity.

The following offences were included in HB 4727;13 However, they are not
included in HB 7814:

• Plunder (accumulation of wealth “through a combination or series of

overt criminal acts … in the aggregate amount or total value of at least
fifty million pesos”);14 and

• Human trafficking (“when the victim is killed or dies as a consequence of

the detention or is raped, or is subjected to torture or dehumanizing
acts”).15

B. The Constitution of the Republic of the Philippines

Article III, Section 1 of the Constitution clearly provides that, “No person
shall be deprived of life, liberty or property without due process of law, nor shall
any person be denied equal protection of the laws.” The constitutional guarantee
to the right to life is “not just a protection of the right to be alive or to the security
of one’s limb against physical harm. The right to life is the right to a good life.” 16

Moreover, Article III, Section 19 of the Constitution substantially provides,

among other things, that “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.” In effect, this constitutional provision has abolished death
penalty. However, the legislature has the authority to restore it in the future
provided that it finds “compelling reasons involving heinous crimes.” 17 Inversely,
with the power to legislate death penalty comes the power to abolish it.

It is important to emphasize that the power of the legislature to reintroduce

death penalty is not absolute as it is, as ruled in the case of People v. Echegaray,
“subject to a clear showing of compelling reasons involving heinous crimes.” 18 In
addition, it is an established policy, by virtue of Article II, Section 11 of the
Constitution, that “The State values the dignity of every human person and
guarantees full respect for human rights.” This constitutional provision under our
fundamental law is in conformity with the provisions of the UDHR and the ICCPR

13
Bill 4727 (n 3).
14
Id. § 14.
15
Id. § 11.
16
Joaquin G. Bernas, S.J., “The 1987 Philippine Constitution: A Comprehensive Reviewer”, 2011 edition.
17
Article III, Section 19 of the Constitution.
18
People v. Echegaray, G.R. No. 117472, February 7, 1997

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that provide an assurance that every individual has the inherent right to life as well
as human dignity.

The Commission on Human Rights has categorized death penalty as “the

utmost form of torture.”19 The right to be free from torture and ill-treatment is
provided for in Article 5 of the UDHR which states that “No one shall be subjected
to torture or to cruel, inhuman or degrading treatment or punishment.” 20 The same
is also reflected in Article 7 of the ICCPR which guarantees the right against
torture.21

Another provision found in the ICCPR that relates to torture is Article 10

which states that “1. All persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person. 2. (a)
Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons and shall be subject to separate treatment appropriate to their
status as unconvicted persons. (b) Accused juvenile persons shall be separated
from adults and brought as speedily as possible for adjudication. 3. The
penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders shall
be segregated from adults and be accorded treatment appropriate to their age and
legal status.”22

With regard to the status of this right, “there is no doubt that the prohibition
of torture and other ill-treatment is a norm of customary international law.
Relevant indications are: the fact that the rule is couched in absolute terms,
brooking no exceptions…, not even the spurious ‘ticking bomb’ situation, the
principle of no derogation even in time of war or other public emergency, and the
fact that the States do not claim a right to torture.” 23 As a norm of customary
international law, it means that States are absolutely prohibited to do anything that
will violate this right. “It is also beyond peradventure that the prohibition of torture
is a rule of jus cogens, a peremptory rule of international law which cannot even
be modified by treaty.”24

III. ‘MOST SERIOUS CRIME’ AND INTERNATIONAL CRITIQUE OF

THE PHILIPPINES

A. ICCPR

From the point of view of our standing in the international community,

reintroducing the death penalty will contravene our treaty obligations and the
doctrine of pacta sunt servanda. The Philippines signed and ratified the Second
Optional Protocol to the ICCPR in September 2006 and November 2007
respectively. This treaty obligates its State parties not to execute anyone within
their territorial jurisdiction25 as well as to take all necessary measures to abolish

19
CHR-A2005-004, Commission on Human Rights, March 22, 2005.
20
Universal Declaration of Human Rights, Article 5
21
ICCPR, Article 7 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to medical or scientific experimentation.”
22
Ibid, Article 10
23
Nigel Rodley, “Integrity of the Person”, International Human Rights Law, Oxford University Press, 2014.
24
Ibid.
25
Second Optional Protocol to the ICCPR, Article 1

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the death penalty26. By entering into this treaty, our country willingly bound itself
to permanently abolish the capital punishment. The Philippines and any State for
that matter who entered into a treaty are under the obligation to keep their
commitments. States are compelled to observe, keep, and undertake the promises
made to fellow State parties and to the international community. This is in line
with the international law principle of pacta sunt servanda. Under this principle,
a State party to a treaty is bound to comply with the obligations it assumed under
such treaty in good faith.27 In the case of La Chemise Lacoste v. Fernandez, the
Supreme Court explained that “the generally accepted principle of international
law of pacta sunt servanda…has been adopted as part of the law of our land.” 28 The
Supreme Court also clarified that “[b]y their inherent nature, treaties really limit
or restrict the absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for greater benefits
granted by or derived from a convention or pact”29 Entering into a treaty does not
merely create a moral responsibility but it produces a “legally binding obligation
on the parties…A State which has contracted valid international obligations is
bound to make its legislations such modifications as may be necessary to ensure
the fulfilment of the obligations undertaken.”30

Clearly, when the Philippines ratified the ICCPR in 1986 and Second
Optional Protocol to the ICCPR without any reservations in November of 2007, it
freely and willingly chose to limit its sovereignty; therefore, it has to comply with
its legal obligations to undertake “all necessary measures to abolish the death
penalty.”31 Interestingly, Article 56 of the Vienna Convention on the Law of
Treaties expressly states that treaties which do not contain stipulations concerning
withdrawal or denunciation cannot be denounced or be withdrawn from unless it
can be established that the parties intended to admit the possibility of
denunciation or withdrawal or a right to denunciation or withdrawal may be
implied by the nature of the treaty.32 In this case, these conditions that would merit
withdrawal have not been satisfied. In fact, there is even a global trend towards the
abolition of the death penalty. The international thrust is “to curtail or abolish
death penalty both in law and in practice.”33 The language of the General Comment
No. 36 to Article 6 of the ICCPR is clear: “the Second Optional Protocol does not
contain termination provisions and State parties cannot denounce it. Abolition of
the death penalty is therefore legally irrevocable.”34 Violating international
commitments and legally binding obligations will not only make the reputation of
the Philippines suffer in the eyes of the international community but also possibly
strain its relations with other countries.

Moreover, although the Constitution itself provides that Congress has the
authority to reimpose the capital punishment, the exercise of such power is not
absolute. The Supreme Court ruled that “[t]he constitutional exercise of this
limited power to re-impose the death penalty entails (1) that Congress define or
describe what is meant by heinous crimes; (2) that Congress specify and penalize

26
Ibid, Article 2
27
Vienna Convention on the Law on Treaties, Article 26.
28
La Chemise Lacoste v. Fernandez, G.R. No. L-63796-97, 1984.
29
Tanada v Angara, G.R. No. 118295, May 2, 1997.
30
Ibid.
31
Second Optional Protocol to the ICCPR, Article 2
32
Vienna Convention on the Law on Treaties, Article 56
33
Amnesty International, Amnesty International Global Report: Death Sentences and Executions 2017,
https://www.amnesty.org/download/Documents/ACT5079552018ENGLISH.PDF, accessed on 5 December 2019.
34
General Comment No. 36 to Article 6 of the ICCPR, par. 34

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by death, only crimes that qualify as heinous in accordance with the definition or
description set in the death penalty bill and/or designate crimes punishable by
reclusion perpetua to death in which latter case, death can only be imposed upon
the attendance of circumstances duly proven in court that characterize the crime
to be heinous in accordance with the definition or description set in the death
penalty bill; and (3) that Congress, in enacting this death penalty bill be singularly
motivated by “compelling reasons involving heinous crimes.” 35

Article 27 of the Vienna Convention on the Law of Treaties (VCLT) clearly

bars a State from citing its national law to rationalise and use as an excuse for a
violation of international law.36 It cannot be a valid excuse that just because the
Constitution provides for the possibility of reintroducing the death penalty into our
laws, we cannot simply sweep under the rug our legally binding international
commitments under the ICCPR and the Second Optional Protocol to the ICCPR.
Obviously, should our country reinstate the capital punishment for any crime for
that matter, it is a clear infringement of our unqualified obligations under the
Second Optional Protocol to the ICCPR.

Placing drug-related cases in the category of heinous crimes or the most

serious crimes meriting death penalty is “questionable”. 37 As clarified in General
Comment No. 36 on Article 6 of the ICCPR on the right to life, “the term ‘the most
serious crimes’ must be read restrictively and appertain only to crimes of extreme
gravity, involving intentional killing.”38 The wholesale classification of drug-
related cases as heinous crime is indeed problematic and will contravene our treaty
obligations under the ICCPR and the Second Optional Protocol to the ICCPR. In
fact, the prevailing view of subject matter experts and health practitioners
regarding illegal drugs is that it is, to a large extent, a health issue.

According to Fr. Bernas, S.J. the Constitution abolished the death penalty
for various reasons. Among them is that “it inflicts traumatic pain not just on the
convict but also on the family, even if the penalty is not carried out…”39 Examining
death penalty from the aspect of the interrelatedness of human rights would reveal
other problems attendant to the reinstatement of the death penalty. It is
undeniable that when the Court imposes the penalty of death upon an individual,
such a decision has a significant impact not only on the life of the convict but also
to those of his family.40 In fact, the death penalty would infringe upon a number of
rights under the Convention on the Rights of the Child (CRC).41 The doctrine of the
best interest of the child–as derived from Article 3 of the CRC–states that “in all
actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interest of the child shall be a primary consideration.” 42 Also, in cases
where the convict would have other dependents such as his elderly parents and

35
People v. Echegaray
36
Vienna Convention on the Law on Treaties, Article 27
37
Flag Anti-Death Penalty Task Force, Position Paper on the Death Penalty for Drug Trafficking in the Philippines
38
General Comment No. 36 on Article 6 of the ICCPR, par. 35
39
Joaquin G. Bernas, S.J., “The 1987 Philippine Constitution: A Comprehensive Reviewer”, 2011 edition
40
Should the wife and/or child belong to a single income household and the convict is the breadwinner, their human rights will be
significantly affected. Their capacity to avail of their basic needs such as food, shelter, clothing, healthcare, and education, to name
a few, will be significantly hampered.
41
Convention on the Rights of the Child, Article 19 providing for the right of the child to be free from violence, in particular mental
violence; Article 20 providing the right to special protection and assistance by the State action when a child is deprived of his or her
family environment, and Article 27 providing for the right to a standard of living adequate for a child’s physical, mental, spiritual, moral
and social development.
42
Convention on the Rights of the Child, Article 3

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relatives, their rights to adequate standard of living, among others, will likewise be
greatly altered. Indeed, the undesirable effect on human rights of those affected is
more pronounced if they belong to the traditionally vulnerable groups such as the
persons with disability, rural and urban poor, indigenous people, women, and
children. It is indeed crucial to evaluate and always bear in mind how a parent’s
death through the imposition of the capital punishment will affect, influence, and
the change the child and his/her life. This impact should always be considered in
deciding cases.

Even assuming, for the sake of argument, that the Philippines decide to
withdraw from the UNCAT, this is still not legally plausible. The right against
torture is jus cogens. Philippine jurisprudence classifies as torture or lingering
death as a form of cruel punishment.43

In addition to the international agreements already mentioned, there are

other treaties that squarely apply to the issue of illegal drugs and its link with the
capital punishment. Under the Single Convention on Narcotic Drugs, 1961 (‘Single
Convention’),44 subject to the penal provision, adequate punishment should be
imposed for serious drug offences including “imprisonment or other penalties of
deprivation of liberty”.45 It is indicated in the Commentary on the Single
Convention that detention is regarded as the “adequate” punishment for serious
drug crimes, and the death penalty is not considered. 46 Subsequent conventions,
including the Convention on Psychotropic Substances and the Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances have been
consistent with this approach.47 The International Guidelines on Human Rights
and Drug Policy also makes it clear that drug offence does not meet the
internationally recognised threshold of ‘most serious crime’. 48

By entering into these treaties, we made the commitment that drug-related

offenses shall have imprisonment as punishment–not death penalty.

B. Human Rights Council

In its 2014 report to the General Assembly on the Question of the Death
Penalty,49 the Human Rights Council, of which the Philippines is a current
Member, confirmed the restriction on the imposition of the death penalty to only
the ‘most serious crimes’, which have been held to include only those crimes of
murder or intentional killing.50

43
Legarda v. Valdez, G.R. No. 513 (1902)
44
UN General Assembly, The Single Convention on Narcotic Drugs 1961, 30 March 1961.
45
Id. art. 36.
46
Commentary on the Single Convention on Narcotic Drugs, 1961. (Prepared by the Secretary-General in accordance with paragraph
1 of Economic and Social Council resolution 914 D(XXXIV) of 3 August 1962, 429.
47
UN General Assembly, Convention on Psychotropic Substances 1971, 9 December 1975, A/RES/344, art 22; UN Economic and
Social Council (ECOSOC), United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 19
December 1988, art. 3.
48
“II. Obligations arising from human rights standards”, International Guidelines on Human Rights and Drug Policy (Webpage)
<https://www.humanrights-drugpolicy.org/guidelines/obligations-arising-from-human-rights-standards/right-to-life/#cite_18.>.

49
Human Rights Council, Question of the Death Penalty: Report of the Secretary-General, UN Doc
A/HRC/27/23 (30 June 2014).
50
Id. at para. 28.

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 A significant number of sections within the proposed bills attempt to
reinstate the death penalty for drug-related offences.51 The Council has explicitly
addressed the use of the death penalty for drug-related offences, stating that drug-
related offences do not meet the definition of ‘most serious crimes’, and its use
serves as no greater deterrent than other forms of punishment in relation to drug
offences.52

C. International Commission of Jurists (‘ICJ’)

The ICJ has denounced the Philippines’ proposed reintroduction of the

death penalty for drug-related crimes. Following the approval of HB 4727, the ICJ
condemned the Philippines’ move to reinstate the death penalty.53 The ICJ’s
Senior International Legal Adviser for Southeast Asia, Attorney Emerlynne Gil,
stated that “passing this law will send a negative message to the international
community that the Philippines is incapable of observing in good faith the
international obligations it has expressly bound itself to.”54 Furthermore, the ICJ’s
Asia Director, Sam Zarifi, noted that “reinstating the death penalty would breach
the Philippines’ international legal obligations and would constitute an all-out
assault on decades of global advances in protecting the right to life through
abolition of this barbarous practice.”55

D. Special Rapporteurs

The United Nations Special Rapporteurs on Extrajudicial, Summary or

Arbitrary Executions have repeatedly concluded that the definition of ‘most serious
crime’ includes only cases where it can be shown that there was an intention to kill
which resulted in a loss of life.56 This definition has been endorsed by the Human
Rights Committee, and by the Secretary General. 57

Drug-related offences fall outside this definition, as do a number of other

offences which lack either an intention to kill, or loss of life.58 This conclusion is

51
Bill 4727 (n 3).
52
Id. § 29.
53
International Commission of Jurists, ‘Philippines: the ICJ condemns approval of the death penalty bill’ (Press
Release, 7 March 2017) <https://www.icj.org/philippines-the-icj-condemns-approval-of-the-death-penalty-bill/>.
54
Id.
55
International Commission of Jurists, ‘The Philippines must not bring back the death penalty’ (Press Release,
14 November 2016) <https://www.icj.org/the-philippines-must-not-bring-back-the-death-penalty/>.
56
Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc
A/HRC/4/20 (29 January 2007); Agnes Callamard, ‘Statement by the Special Rapporteur at the "Launch of the
Parliamentary Fact Sheet on the Death Penalty and Terrorism-related Offences"’ (Speech, Launch of the
Parliamentary Fact Sheet on the Death Penalty and Terrorism-related Offences, 20 October 2016).
57
Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc
A/HRC/4/20 (29 January 2007).
58
Also excluded were:
‘abduction not resulting in death, abetting suicide, adultery, apostasy, corruption, drug-related
offences, economic crimes, the expression of conscience, financial crimes, embezzlement by officials,
evasion of military service, homosexual acts, illicit sex, sexual relations between consenting adults,
theft or robbery by force, religious practice, and political offences’
Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc
A/HRC/4/20 (29 January 2007) para 51; Agnes Callamard, ‘Statement by the Special Rapporteur at the
"Launch of the Parliamentary Fact Sheet on the Death Penalty and Terrorism-related Offences"’ (Speech,
Launch of the Parliamentary Fact Sheet on the Death Penalty and Terrorism-related Offences, 20 October
2016).

Page 9 of 11
based on an examination of international law, jurisprudence, statements, and
principles of UN affiliated bodies, and the practices of Member States. 59

However, this conclusion cannot be regarded as universal given that it has

been contested by some retentionist states. 60 For example, Singapore has written
a letter addressed to the Special Rapporteur contending that the international
community considers drug trafficking as falling under the definition of ‘most
serious crimes’.61 Despite these submissions, the Rapporteurs have repeatedly
stood by and endorsed their own definition, excluding drug-related crimes.

IV. OTHER INTERNATIONAL BODIES AND TREATIES

A wide range of international bodies seek to exclude drug-related offences

from the definition of ‘most serious crime’, advocating against the use of the death
penalty for these offences. A restrictive view of ‘most serious crimes’, adopted by
these bodies, would also serve to exclude plunder and human trafficking from this
definition.

A. Human Rights Committee

The Human Rights Committee has explicitly rejected the inclusion of drug-
related offences into the definition of ‘most serious crimes’, 62 stating that the
definition should be read restrictively, 63 and that use of the death penalty should
be an exceptional measure.64 Consequently, the Committee has called upon states
to stop executing prisoners for drug-related crimes.65

In practice, the Committee has found that only the offence of murder
indisputably satisfies the ‘most serious crimes’ threshold, 66 and has consistently
rejected the proposition that any other cases warrant the death penalty. 67 Since the
1990s, the Committee has drafted recommendations to states such as Kuwait,68 Sri
Lanka,69 and Indonesia,70 encouraging the abolition of the death penalty for drug-
related crimes.

59
Agnes Callamard, ‘Statement by the Special Rapporteur at the "Launch of the Parliamentary Fact Sheet on
the Death Penalty and Terrorism-related Offences"’ (Speech, Launch of the Parliamentary Fact Sheet on the
Death Penalty and Terrorism-related Offences, 20 October 2016).
60
Rick Lines, ‘A 'Most Serious Crime?' – The Death Penalty for Drug Offences and International Human Rights
Law.’ (2010) 21 (12) Amicus Journal 21, at 21.
61
Government of Singapore, ‘Letter dated 27 June 1997 from the Permanent Mission of Singapore to the
United Nations Office at Geneva Addressed to the Special Rapporteur on Extrajudicial, Summary or Arbitrary
Executions (5 December 1997) UN Doc No E/CN.4/1998/113, at para. 3.
62
Human Rights Committee, General Comment No 36: On Article 6 of the International Covenant on Civil and
Political Rights – Right to life, 127th sess, UN Doc CCPR/C/GC/36 (3 September 2019) at 35–36.
63
Id. at 35.
64
Id. at 5.
65
Id. at 37.
66
Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, UN Doc
A/HRC/4/20 (29 January 2007).
67
Id.
68
Human Rights Committee, Report of the Human Rights Committee, 55th sess, UN Doc A/55/40(1) (2000) 67
at para. 464.
69
Human Rights Committee, Consideration Of Reports Submitted By States Parties Under Article 40 Of The
Covenant - Comments of the Human Rights Committee - Sri Lanka, 54th sess, UN Doc CCPR/C/79/Add.56 (27
July 1995) 3 at para. 14.
70
Human Rights Committee, Concluding observations on the initial report of Indonesia, 108th sess, UN Doc
CCPR/C/IDN/CO/1 (21 August 2013) 5, at para. 10.

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 B. United Nations Economic and Social Council (‘ECOSOC’)

The Safeguards guaranteeing protection of the rights of those facing the

death penalty, approved by ECOSOC resolution 1984/50 on 25 May 1984, details
that ‘capital punishment may be imposed only for the most serious crimes’.
ECOSOC denotes that the scope for ‘most serious crimes’ should not go beyond
‘intentional crimes with lethal or other extremely grave consequences’. 71 As the
ECOSOC did not define ‘extremely grave consequences‘, this was initially open to
broad interpretation. The United Nations Committee has subsequently addressed
this issue by reinforcing the terminology ‘most serious‘ offences and restricting it
to violent crimes only and as an exceptional measure. 72 This is in line with the
limited interpretation of the Human Rights Council. Any expansion to the
definition would otherwise be incompatible with Article 6 of the ICCPR.

V. CONCLUSION

The Philippines cannot live outside the international legal system. Our
country must face, accept, and honour its obligations and guarantee full respect for
human rights. Numerous international bodies have condemned the use of the
death penalty for offences beyond intentional acts resulting in loss of life, as they
do not meet the threshold of ‘most serious crimes’. The proposed legislation would
not only breach the Philippines’ international obligations; but it would also go
beyond the limit of ‘heinous crimes’ found within its own Constitution.

LET THIS ADVISORY be adopted and circulated as widely as possible.

ISSUED this 25th day of April 2022, at Quezon City, Philippines.

LEAH C. TANODRA-ARMAMENTO
Chairperson

KAREN S. GOMEZ DUMPIT GWENDOLYN LL. PIMENTEL-GANA

Commissioner Commissioner

ROBERTO EUGENIO T. CADIZ

Commissioner

71
ESC Res 1984/50, UN Doc E/1984/84 (25 May 1984).
72
Ye Liangfang, Hafiz Saleem & Ayesha Mumtaz, ‘“Most serious crimes“ vs “Especially serious circumstances“
the economic crimes under ICCPR and death penalty in China‘ (2017) 6(1) Global Journal of Politics and Law
Research 28, 31; Economic and Social Council, Capital punishment and implementation of the safeguards
guaranteeing protection of the rights of those facing the death penalty: Report of the Secretary-General, UN
Doc E/2015/49 (April 2015) at para. 60-68.

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