Illustration by Jenny Gernale
Why we should oppose the death penalty
By Paeng Palis
After its provisional abolition under the 1987 Constitution, its return in 1993, and subsequent abolition in 2006 by Congress, the death penalty seems very likely to return under the present administration. We need to oppose this. Even more so in light of the spike of extrajudicial killings in the “war against drugs.”
A look back
In pre-Hispanic Philippines, the death penalty was accepted as punishment for persons found guilty of infractions including adultery, theft, and using abusive language with or hurling insults against a village chief or member of his family.1 Yet, historians have noted that in this period death penalties, though often imposed, were not frequently carried out. There were also instances when the penalty of death was commuted to the enslavement of the guilty person and/or his household.2 (In this, slavery was not as simple or monolithic a condition as in the paradigmatic example of African-American slaves in the United States. The Philippines featured many levels and kinds of slavery, with certain levels even occupying status of respect within the society.)
During the Spanish period, Spanish officials employed the use of garrote, firing squads, and hanging in order to execute individuals who challenged their established authority. Other means of execution included burning, decapitation, drowning, flaying, stabbing, and others.3 With the Americans came the use of the electric chair. Treason, parricide, piracy, kidnapping, murder, rape, and robbery with homicide were then considered as capital offenses.4 Reports also note the habit of Japanese soldiers of beheading individuals during the Japanese occupation.5
After independence, the Philippines continued the practice of executing criminals guilty of heinous crimes including murder, rape, treason, and espionage through the use of the electric chair introduced by the Americans.6 Under the Marcos regime, death by firing squad was also used on criminals found guilty of drug trafficking.7 Other capital offenses included subversion, possession of firearms, arson, hijacking, embezzlement, unlawful possession of firearms, illegal fishing, and cattle rustling.8
The 1987 Constitution prohibited the death penalty in the Philippines, making it the first country in Asia to abolish the capital punishment for all crimes.9 However, the new Constitution gave Congress the power to reinstate the same if the latter finds it necessary. Article III, Section 19 (1) reads: “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.”
In 1993, the Ramos administration reimposed the death penalty by virtue of Republic Act No. 7659 to address the rising criminality and incidence of heinous crimes.10 In 1996, Republic Act No. 8177 mandated that the death penalty shall be carried out through lethal injection.11
In 2000, the Estrada administration issued a moratorium on all executions. However, in 2003, the Arroyo administration lifted the de facto moratorium on the death penalty issued by the former administration. Amendments were then made to Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs act of 2002), increasing the number of capital offenses to 52, of which 30 are death mandatory and 22 are death eligible.12 Nevertheless, in 2006, the death penalty was again suspended by virtue of Republic Act No. 9346 with the penalties of life imprisonment and reclusion perpetua replacing the capital punishment.13
Duterte and his promise to bring back the death penalty
During the run-up to the 2016 Presidential Elections, President Rodrigo R. Duterte, then mayor of Davao City, was vocal about his plans to reimpose the death penalty.14 Duterte even went into specificities, stating that he preferred to reinstate, of all methods, death penalty by hanging.15
Winning with an overwhelming majority in the said elections, Duterte and his allies in Congress immediately moved to make this happen, immediately filing House Bill No.1 in July 2016. The first bill in the 17th Congress, co-authored by House Speaker and Davao del Norte Rep. Pantaleon Alvarez and Capiz Rep. Frenedil Castro, it seeks to reimpose capital punishment for heinous crimes through lethal injection.16 [Other related bills have also been filed, including House Bill No. 4727 (HB 4727).]
In December 2016, the bills passed the committee level with the justice committee of the House of Representatives approving the same with the vote of 12-6 with one abstention.17 On 8 March 2017, the House approved HB 4727 on third and final reading. The bill provides, among others, that the death penalty be meted to those proven guilty of drug-related cases through hanging, firing squad, or lethal injection.18 All eyes are now on the Senate, as we wait to see if Congress will reintroduce the death penalty to the Philippines.
In a talk held on October 7, 2016 at the De La Salle University Rufino Campus, Australian barrister Julian MacMahon referred to the death penalty as “state-sanctioned violence.” He noted that 140 countries around the world have abolished capital punishment, and that while 25 countries still execute criminals under the law, such numbers are still diminishing.
MacMahon shared his experience as counsel to some of the members of the so-called “Bali Nine”—a group of Australians arrested in 2005 for smuggling heroin from Indonesia to Australia. Two members of the group were sentenced to death by firing squad and were executed in 2015. Meanwhile, MacMahon and a few other lawyers worked together with the Bali Nine to establish an education center in their prison to help those behind bars learn basic skills, such as word processing. With his clients reformed, MacMahon appealed to the Indonesian Supreme Court, but lost. They then appealed to the Constitutional Court, questioning the right of the State to take away life. The Constitutional Court was split in the middle, but in the end the Bali Nine lost.
The death penalty, seen from any angle, is contrary to the principles of human rights. The Commission on Human Rights has opposed the enactment of any law re-imposing the death penalty in the Philippines on the grounds that it offends the dignity of the human person and human rights. [Article II, Section 11 of the 1987 Constitution provides that: “The State values the dignity of every human person and guarantees full respect for human rights.”] This is in accordance with the Universal Declaration on Human Rights19 and the International Covenant on Civil and Political Rights.
The death penalty is also a violation of the right not to be subjected to torture or degrading treatment as articulated in the International Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment of Punishment.20 The Convention prohibits the infliction of any kind of physical or mental pain as a form of punishment. Barring extrajudicial killings, the death penalty is the highest form of torture.
Beyond merely legal arguments, however, we need to oppose the reimposition of the death penalty in the Philippines for the simple reason that humans are imperfect and should not render judgments that are beyond rectification. In People v. Mateo, the Philippine Supreme Court found that seven (7) out of ten (10) people who received the death penalty were wrongfully charged. That is an astounding proportion that should, on its own, stop us from trusting in the fairness of the death penalty.
“…the Philippine Supreme Court found that seven (7) out of ten (10) people who received the death penalty were wrongfully charged.”
While the death penalty may be said to have worked as a deterrent to crime in the past, the same cannot necessarily be said today. As societies change, so must the laws that aim to protect the rights the life and liberty of its citizens. Failing that, we must remember the fallibility of human judgment in both cases—both to commit a crime that was wrong and to pronounce an innocent man as guilty. It goes without saying that the move to oppose the reimposition of the capital punishment must also take into consideration other factors that may affect the Philippine justice system and how the State should treat those on the wrong side of the law. Yet, the events of the past months only give us more reason to oppose the return of the capital punishment. Its return would legitimize the extrajudicial killings—arguably a worse form of ‘state-sanctioned violence’—that have plagued the country. Slaughtered and culled like animals, the victims do not even see their constitutionally-guaranteed day in court. How many innocent lives need to be unnecessarily lost in this “war” before we raise our voices against it? Already too many.
Mintz. Malcolm. “Crime and Punishment in Pre-Hispanic Philippine Society” in Intersections: Gender and Sexuality in Asia and the Pacific. Australian National University. (2008), Available at http://intersections.anu.edu.au/issue13/intersections.anu.edu.au/issue13/mintz.html country since the start of the als, ind do not even see their day in court. e lost due to this inhumane ave plagued the country(Last visited January 3, 2017).2
“A timeline of death penalty in the Philippines” PCIJ Blog. Philippine Center for Investigative Journalism. (April 18, 2006), Available at http://pcij.org/blog/2006/04/18/a-timeline-of-death-penalty-in-the-philippines (Last visited January 3, 2017).4
McLean, John. “Philippines ‘restores death penalty” BBC News. (December 21, 2003), Available at http://news.bbc.co.uk/2/hi/programmes/from_our_own_correspondent/3337273.stm (Last visited January 3, 2017).6
Galvin, Anthouny. Old Sparky: The Electric Chair and the History of the Death Penalty. Skyhorse Publishing Company. (2016).7
Ocampo, Ambeth. “Lim Seng remembered” Inquirer.net (July 13, 2016), Available at http://opinion.inquirer.net/95625/lim-seng-remembered (Last visited January 3, 2017).8
“A timeline of death penalty in the Philippines.” PCIJ Blog. Philippine Center for Investigative Journalism. (April 18, 2006), Available at http://pcij.org/blog/2006/04/18/a-timeline-of-death-penalty-in-the-philippines (Last visited January 3, 2017).9
“Arroyo kills death penalty.” SunStar.com (June 25, 2006), Available at https://web.archive.org/web/20080617190404/http://www.sunstar.com.ph/static/ceb/2006/06/25/news/arroyo.kills.death.law.html (Last visited January 3, 2017).14
Lacorte, Gemerlina. “Duterte wants death penalty back.” Inquirer.net (December 28, 2015), Available at http://newsinfo.inquirer.net/750698/duterte-wants-death-penalty-back (Last visited January 3, 2017).15
Andolong, Ina. “Duterte wants to restore death penalty by hanging.” CNN Philippines. (May 18, 2016), Available at http://cnnphilippines.com/news/2016/05/16/Duterte-death-penalty-by-hanging.html (Last visited January 3, 2017).16
Cayabyab, Marc Jason. “First bill in Congress seeks reinstatement of death penalty.” Inquirer.net (July 6, 2016), Available at http://newsinfo.inquirer.net/794585/first-bill-in-congress-seeks-reinstatement-of-death-penalty (Last visited January 3, 2017).17
Yap, DJ. “House Justice committee approves death penalty bill.” Inquirer.net (December 6, 2016), Available at http://newsinfo.inquirer.net/851505/house-justice-committee-approves-death-penalty-bill (Last visited January 3, 2017).18
“WATCH: House passes death penalty bill on 3rd and final reading." Rappler.com (March 8, 2017) http://www.rappler.com/nation/163548-house-pass-death-penalty-3rd-final-reading (Last visited March 15, 2017).19
Available at http://www.jus.uio.no/lm/un.universal.declaration.of.human.rights.1948/portrait.a4.pdf (Last visited January 3, 2017).20
Available at https://treaties.un.org/doc/Publication/UNTS/Volume%201465/volume-1465-I-24841-English.pdf (Last visited January 3, 2017).21
G.R. No. 147678-87, 7 July 2004.