G.R. No.
117472 February 7, 1997 [3] The guilt of the accused was not proved beyond a
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEO ECHEGARAY y PILO, accused-appellant.
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant
case affirming the conviction of the accused-appellant for
the crime of raping his ten-year old daughter. The crime
having been committed sometime in April, 1994, during
which time Republic Act (R.A) No. 7659, commonly
known as the Death Penalty Law, was already in effect,
accused-appellant was inevitably meted out the supreme
penalty of death.
On July 9, 1996, the accused-appellant timely filed a
Motion for Reconsideration which focused on the sinister
motive of the victim's grandmother that precipitated the
filing of the alleged false accusation of rape against the
accused. We find no substantial arguments on the said
motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the
defense counsel, Atty. Julian R. Vitug, and retained the
services of the Anti-Death Penalty Task Force of the Free
Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental
Motion for Reconsideration prepared by the FLAG on
behalf of accused-appellant. The motion raises the
following grounds for the reversal of the death sentence:
[1] Accused-appellant should not have been prosecuted
since the pardon by the offended party and her mother
before the filing of the complaint acted as a bar to his
criminal prosecution.
[2] The lack of a definite allegation of the date of the
commission of the offense in the Complaint and
throughout trial prevented the accused-appellant from
preparing an adequate defense.
reason should such issue be disallowed or disregarded
reasonable doubt.
[4] The Honorable Court erred in finding that the accused-
appellant was the father or stepfather of the complainant
and in affirming the sentence of death against him on this
basis.
[5] The trial court denied the accused-appellant of due
process and manifested bias in the conduct of the trial.
[6] The accused-appellant was denied his constitutional
right to effective assistance of counsel and to due
process, due to the incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is
unconstitutional per se:
a. For crimes where no death results from the offense, the
death penalty is a severe and excessive penalty in
violation of Article III, Sec. 19(1) of the 1987 Constitution.
b. The death penalty is cruel and unusual punishment in
violation of Article III, Sec. 11 of the 1987 Constitution.
In sum, the Supplemental Motion for Reconsideration
raises three (3) main issues: (1) mixed factual and legal
matters relating to the trial proceedings and findings; (2)
alleged incompetence of accused-appellant's former
counsel; and (3) purely legal question of the
constitutionality of R.A. No. 7659.
I
It is a rudimentary principle of law that matters neither
alleged in the pleadings nor raised during the proceedings
below cannot be ventilated for the first time on appeal
before the Supreme Court. Moreover, as we have stated
in our Resolution in Manila Bay Club Corporation v. Court
of Appeals:1
If well-recognized jurisprudence precludes raising an
issue only for the first time on appeal proper, with more
when initially raised only in a motion for reconsideration
of the decision of the appellate court.
It is to be remembered that during the proceedings of the
rape case against the accused-appellant before the sala
of then presiding judge Maximiano C. Asuncion, the
defense attempted to prove that:
a) the rape case was motivated by greed, hence, a mere
concoction of the alleged victim's maternal grandmother;
b) the accused is not the real father of the complainant;
c) the size of the penis of the accused cannot have
possibly penetrated the alleged victim's private part; and
d) the accused was in Parañaque during the time of the
alleged rape.
In his Brief before us when the rape case was elevated
for automatic review, the accused-appellant reiterated as
grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother in
prompting her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis
which could not have caused the healed hymenal
lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new
counsel of the accused-appellant reveals that in their
messianic appeal for a reversal of our judgment of
conviction, we are asked to consider for the first time, by
way of a Supplemental Motion for Reconsideration, the
following matters:
a) the affidavit of desistance written by the victim which
acted as a bar to the criminal prosecution for rape against
the accused-appellant;
b) the vagueness attributed to the date of the commission
of the offense in the Complaint which deprived the
accused-appellant from adequately defending himself;
c) the failure of this Court to clearly establish the qualifying
circumstance that placed the accused-appellant within
the coverage of the Death Penalty Law;
d) the denial of due process and the manifest bias
exhibited by the trial court during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points
for reconsideration, the only legitimate issue that we can
tackle relates to the Affidavit of Desistance which touches
on the lack of jurisdiction of the trial court to have
proceeded with the prosecution of the accused-appellant
considering that the issue of jurisdiction over the subject
matter may be raised at any time, even during appeal.2
It must be stressed that during the trial proceedings of the
rape case against the accused-appellant, it appeared that
despite the admission made by the victim herself in open
court that she had signed an Affidavit of Desistance, she,
nevertheless, "strongly pointed out that she is not
withdrawing the charge against the accused because the
latter might do the same sexual assaults to other
women."3 Thus, this is one occasion where an affidavit of
desistance must be regarded with disfavor inasmuch as
the victim, in her tender age, manifested in court that she
was pursuing the rape charges against the accused-
appellant.
We have explained in the case of People v. Gerry
Ballabare,4 that:
As pointed out in People v. Lim (24 190 SCRA 706
[1990], which is also cited by the accused-appellant, an
affidavit of desistance is merely an additional ground to
buttress the accused's defenses, not the sole
consideration that can result in acquittal. There must be
other circumstances which, when coupled with the
retraction or desistance, create doubts as to the truth of
the testimony given by the witnesses at the trial and
accepted by the judge. 5
In the case at bar, all that the accused-appellant offered
as defenses mainly consisted of denial and alibi which
cannot outweigh the positive identification and convincing
testimonies given by the prosecution. Hence, the affidavit
of desistance, which the victim herself intended to
disregard as earlier discussed, must have no bearing on
the criminal prosecution against the accused-appellant,
particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the
negligence or mistakes of his counsel.6 One of the
recognized exceptions to this rule is gross incompetency
in a way that the defendant is highly prejudiced and
prevented, in effect, from having his day in court to defend
himself.7
In the instant case, we believe that the former counsel of
the accused-appellant to whom the FLAG lawyers now
impute incompetency had amply exercised the required
ordinary diligence or that reasonable decree of care and
skill expected of him relative to his client's defense. As the
rape case was being tried on the merits, Atty. Vitug, from
the time he was assigned to handle the case, dutifully
attended the hearings thereof. Moreover, he had
seasonably submitted the Accused-Appellant's Brief and
the Motion for Reconsideration of our June 25, 1996
Decision with extensive discussion in support of his line
of defense. There is no indication of gross incompetency
that could have resulted from a failure to present any
argument or any witness to defend his client. Neither has
he acted haphazardly in the preparation of his case
against the prosecution evidence. The main reason for his
failure to exculpate his client, the accused-appellant, is
the overwhelming evidence of the prosecution. The
alleged errors committed by the previous counsel as
enumerated by the new counsel could not have
overturned the judgment of conviction against the
accused-appellant.
III
Although its origins seem lost in obscurity, the imposition
of death as punishment for violation of law or custom,
religious or secular, is an ancient practice. We do know
that our forefathers killed to avenge themselves and heir
akin and that initially, the criminal law was used to
compensate for a wrong done to a private party or his
family, not to punish in the name of the state.
The dawning of civilization brought with it both the
increasing sensitization throughout the later generations
against past barbarity and the institutionalization of state
power under the rule of law. Today every man or woman
is both an individual person with inherent human rights
recognized and protected by the state and a citizen with
the duty to serve the common weal and defend and
preserve society.
One of the indispensable powers of the state is the power
to secure society against threatened and actual evil.
Pursuant to this, the legislative arm of government enacts
criminal laws that define and punish illegal acts that may
be committed by its own subjects, the executive agencies
enforce these laws, and the judiciary tries and sentences
the criminals in accordance with these laws.
Although penologists, throughout history, have not
stopped debating on the causes of criminal behavior and
the purposes of criminal punishment, our criminal laws
have been perceived as relatively stable and functional
since the enforcement of the Revised Penal Code on
January 1, 1932, this notwithstanding occasional
opposition to the death penalty provisions therein. The
Revised Penal Code, as it was originally promulgated,
provided for the death penalty in specified crimes under
specific circumstances. As early as 1886, though, capital
punishment had entered our legal system through the old
Penal Code, which was a modified version of the Spanish
Penal Code of 1870.
The opposition to the death penalty uniformly took the
form of a constitutional question of whether or not the
death penalty is a cruel, unjust, excessive or unusual
punishment in violation of the constitutional proscription
against cruel and unusual punishments. We unchangingly
answered this question in the negative in the cases
of Harden v. Director of Prison,8 People
v. Limaco, People
9
v. Camano, 10 People
v. Puda and People v. Marcos. In Harden, we ruled:
11 12
The penalty complained of is neither cruel, unjust nor
excessive. In Ex-parte Kemmler, 136 U.S., 436, the
United States Supreme Court said that 'punishments are
cruel when they involve torture or a lingering death, but
the punishment of death is not cruel, within the meaning
of that word as used in the constitution. It implies there
something inhuman and barbarous, something more than
the mere extinguishment of life. 13
Consequently, we have time and again emphasized that
our courts are not the for a for a protracted debate on the
morality or propriety of the death sentence where the law
itself provides therefor in specific and well-defined
criminal acts. Thus we had ruled in the 1951 case
of Limaco that:
. . . there are quite a number of people who honestly
believe that the supreme penalty is either morally wrong
or unwise or ineffective. However, as long as that penalty
remains in the statute books, and as long as our criminal
law provides for its imposition in certain cases, it is the
duty of judicial officers to respect and apply the law
regardless of their private opinions. 14
and this we have reiterated in the 1995 case
of People v. Veneracion. 15
Under the Revised Penal Code, death is the penalty for
the crimes of treason, correspondence with the enemy
during times of war, qualified piracy, parricide, murder,
infanticide, kidnapping, rape with homicide or with the use
of deadly weapon or by two or more persons resulting in
insanity, robbery with homicide, and arson resulting in
death. The list of capital offenses lengthened as the
legislature responded to the emergencies of the times. In
1941, Commonwealth Act (C.A.) No. 616 added
espionage to the list. In the 1950s, at the height of the Huk
rebellion, the government enacted Republic Act (R.A.)
No. 1700, otherwise known as the Anti-Subversion Law,
which carried the death penalty for leaders of the
rebellion. From 1971 to 1972, more capital offenses were
created by more laws, among them, the Anti-Hijacking
Law, the Dangerous Drugs Act, and the Anti-Carnapping
Law. During martial law, Presidential Decree (P.D.) No.
1866 was enacted penalizing with death, among others,
crimes involving homicide committed with an unlicensed
firearm.
In the aftermath of the 1986 revolution that dismantled the
Marcos regime and led to the nullification of the 1973
Constitution, a Constitutional Commission was convened
following appointments thereto by Corazon Aquino who
was catapulted to power by the people.
Tasked with formulating a charter that echoes the new
found freedom of a rejuvenated people, the Constitutional
Commissioners grouped themselves into working
committees among which is the Bill of Rights Committee
with Jose B. Laurel, Jr. as Chairman and Father Joaquin
G. Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee
draft of the proposed bill of rights to the rest of the
commission. What is now Article III, Section 19 (1) of the
1987 Constitution was first denominated as Section 22
and was originally worded as follows:
Excessive fines shall not be imposed nor cruel, degrading
or inhuman punishment or the death penalty inflicted.
Death penalty already imposed shall be commuted
to reclusion perpetua.
Father Bernas explained that the foregoing provision was
the result of a consensus among the members of the Bill
of Rights Committee that the death penalty should be
abolished. Having agreed to abolish the death penalty,
they proceeded to deliberate on how the abolition was to
be done--whether the abolition should be done by the
Constitution or by the legislature-and the majority voted
for a constitutional abolition of the death penalty. Father
Bernas explained:
. . . [T]here was a division in the Committee not on
whether the death penalty should be abolished or not, but
rather on whether the abolition should be done by the
Constitution — in which case it cannot be restored by the
legislature — or left to the legislature. The majority voted
for the constitutional abolition of the death penalty. And
the reason is that capital punishment is inhuman for the
convict and his family who are traumatized by the waiting,
even if it is never carried out. There is no evidence that
the death penalty deterred deadly criminals, hence, life
should not be destroyed just in the hope that other lives
might be saved. Assuming mastery over the life of another
man is just too presumptuous for any man. The fact that
the death penalty as an institution has been there from
time immemorial should not deter us from reviewing it.
Human life is more valuable than an institution intended
precisely to serve human life. So, basically, this is the
summary of the reasons which were presented in support
of the constitutional abolition of the death penalty. 16
The original wording of Article III, Section 19 (1), however,
did not survive the debate that it instigated. Commissioner
Napoleon G. Rama first pointed out that "never in our
history has there been a higher incidence of crime" and
that "criminality was at its zenith during the last
decade". 17 Ultimately, the dissent defined itself to an
unwillingness to absolutely excise the death penalty from
our legal system and leave society helpless in the face of
a future upsurge of crimes or other similar emergencies.
As Commissioner Rustico F. de los Reyes, Jr. suggested,
"although we abolish the death penalty in the Constitution,
we should afford some amount of flexibility to future
legislation", 18 and his concern was amplified by the
interpellatory remarks of Commissioner Lugum L.
Commissioner and now Associate Justice Florenz
Regalado, Commissioner Crispino M. de Castro,
Commissioner Ambrosio B. Padilla, Commissioner
Christian Monsod, Commissioner Francisco A. Rodrigo,
and Commissioner Ricardo Romulo. Commissioner
Padilla put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
BISHOP BACANI. . . . At present, they explicitly make it
clear that the church has never condemned the right of
the state to inflict capital punishment.
MR. PADILLA. . . . So it is granted that the state is not
deprived of the right even from a moral standpoint of
imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the
Catholic point of view, that right of the state is not
forbidden.
MR. PADILLA. In fact . . . we have to accept that the state
has the delegated authority from the Creator to impose
the death penalty under certain circumstances.
BISHOP BACANI. The state has the delegation from God
for it to do what is needed for the sake of the common
good but the issue at stake is whether or not under the
present circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state
cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by
God at a particular stage in history, but it is not clear
whether or not that delegation is forever under all
circumstances.
MR. PADILLA. So this matter should be left to the
legislature to determine, under certain specified
conditions or circumstances, whether the retention of the
death penalty or its abolition would be for the common
good. I do not believe this Commission can a priori, and
as was remarked within a few days or even a month,
determine a positive provision in the Constitution that
would prohibit even the legislature to prescribe the death
penalty for the most heinous crimes, the most grievous
offenses attended by many qualifying and aggravating
circumstances. 19
What followed, thus, were proposed amendments to the
beleaguered provision. The move to add the phrase,
"unless for compelling reasons involving heinous crimes,
the national assembly provides for the death penalty,"
came from Commissioners Monsod, Jose E. Suarez and
de los Reyes. Commissioner Rodrigo, however,
expressed reservations even as regards the proposed
amendment. He said:
. . . [T]he issue here is whether or not we
should provide this matter in the
Constitution or leave it to the discretion of
our legislature. Arguments pro and con
have been given. . . . But my stand is, we
should leave this to the discretion of the
legislature.
The proposed amendment is halfhearted.
It is awkward because we will, in effect
repeal by our Constitution a piece of
legislation and after repealing this piece of
legislation tell the legislature that we have
repealed the law and that the legislature
can go ahead and enact it again. I think
this is not worthy of a constitutional body
like ours. If we will leave the matter of the
death Penalty to the legislature, let us
leave it completely to the discretion of the
legislature, but let us not have this half-
baked provision. We have many
provisions in the Revised Penal Code
imposing the death penalty. We will now
revoke or repeal these pieces of
legislation by means of the Constitution,
but at the same time say that it is up to the
legislature to impose this again.
. . . The temper and condition of the times
change . . . and so we, I think we should
leave this matter to the legislature to enact
statutes depending on the changing
needs of the times. Let us entrust this
completely to the legislature composed of
representatives elected by the people.
I do not say that we are not competent.
But we have to admit the fact that we are
not elected by the people and if we are
going to entrust this to the legislature, let
us not be half-baked nor halfhearted
about it. Let us entrust it to the legislature
100 percent. 20
Nonetheless, the proposed amendment was
approved with twenty-three (23) commissioners
voting in favor of the amendment and twelve (12)
voting against it, followed by more revisions,
hence the present wording of Article III, Section
19(1) of the 1987 Constitution in the following
tenor:
Excessive fines shall not be imposed nor
cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons
involving heinous crimes, the Congress
hereafter provides for it. Any death
penalty already imposed shall be reduced
to reclusion perpetua.
The implications of the foregoing provision on the
effectivity of the death penalty provisions in the Revised
Penal Code and certain special criminal laws and the
state of the scale of penalties thereunder, were
tremendous.
The immediate problem pertained to the applicable
penalty for what used to be capital crimes. In People
v. Gavarra, 21 we stated that "in view of the abolition of the
death penalty under Section 19, Article III of the 1987
Constitution, the penalty that may be imposed for murder
is reclusion temporal in its maximum period to reclusion
perpetua" 22thereby eliminating death as the original
maximum period. The constitutional abolition of the death
penalty, it seemed, limited the penalty for murder to only
the remaining periods, to wit, the minimum and the
medium, which we then, in People
v. Masangkay, 23 People v. Atencio 24 and People
v. Intino 25 divided into three new periods, to wit, the lower
half of reclusion temporal maximum as the minimum; the
upper half of reclusion temporal maximum as the medium;
and reclusion perpetua as the maximum, in keeping with
the three-grade scheme under the Revised Penal Code.
In People v. Munoz, 26 however, we reconsidered these
aforecited cases and after extended discussion, we
concluded that the doctrine announced therein did not
reflect the intention of the framers. The crux of the issue
was whether or not Article III, Section 19 (1) absolutely
abolished the death penalty, for if it did, then, the
aforementioned new three-grade penalty should replace
the old one where the death penalty constituted the
maximum period. But if no total abolition can be read from
said constitutional provision and the death penalty is only
suspended, it cannot as yet be negated by the institution
of a new three-grade penalty premised on the total
inexistence of the death penalty in our statute books. We
thus ruled in Munoz:
The advocates of the Masangkay ruling
argue that the Constitution abolished the
death penalty and thereby limited the
penalty for murder to the remaining
periods, to wit, the minimum and the
medium. These should now be divided
into three new periods in keeping with the
three-grade scheme intended by the
legislature. Those who disagree feel that
Article III, Section 19 (1) merely prohibits
the imposition of the death penalty and
has not, by reducing it to reclusion
perpetua, also correspondingly reduced
the remaining penalties. These should be
maintained intact.
A reading of Section 19 (1) of Article III will
readily show that there is really nothing
therein which expressly declares the
abolition of the death penalty. The
provision merely says that the death
penalty shall not be imposed unless for
compelling reasons involving heinous
crimes the Congress hereafter provides
for it and, if already imposed, shall be
reduced to reclusion perpetua. The
language, while rather awkward, is still
plain enough. 27
Nothing is more defining of the true content of Article III,
Section 19 (1) of the 1987 Constitution than the form in
which the legislature took the initiative in re-imposing the
death penalty.
The Senate never doubted its power as vested in it by the
constitution, to enact legislation re-imposing the death
penalty for compelling reasons involving heinous crimes.
Pursuant to this constitutional mandate, the Senate
proceeded to a two-step process consisting of: first, the
decision, as a matter of policy, to re-impose the death
penalty or not; and second, the vote to pass on the third
reading the bill re-imposing the death penalty for
compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange
of arguments for and against capital punishment, the
Members of the Senate voted on the policy issue of death
penalty. The vote was explained, thus:
SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there
being no objection, the Body suspended
the Rules of the Senate.
Thereafter, upon motion of Senator
Romulo, there being no objection, the
Chair directed that a nominal voting be
conducted on the policy issue of death
penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the
Members of the Senate would vote on this
policy question, Senator Romulo stated
that a vote of Yes would mean a vote in
favor of death as a penalty to be
reincorporated in the scale of penalties as
provided in the Revised Penal Code, and
a vote of No would be a vote against the
reincorporation of death penalty in the
scale of penalties in the Revised Penal
Code.
INQUIRY OF SENATOR ALVAREZ
xxx xxx xxx
The Chair explained that it was agreed
upon that the Body would first decide the
question whether or not death penalty
should be reimposed, and thereafter, a
seven-man committee would be formed to
draft the compromise bill in accordance
with the result of the voting. If the Body
decides in favor of the death penalty, the
Chair said that the committee would
specify the crimes on which death penalty
would be imposed. It affirmed that a vote
of Yes in the nominal voting would mean
a vote in favor of death penalty on at least
one crime, and that certain refinements on
how the penalty would be imposed would
be left to the discretion of the seven-man
committee.
xxx xxx xxx
INQUIRY OF SENATOR TANADA
In reply to Senator Tanada's query, the
Chair affirmed that even if a senator would
vote "yes" on the basic policy issue, he
could still vote "no" on the imposition of
the death penalty on a particular crime.
 REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body
would be voting on the basic policy issue
of whether or not the death penalty would
be included in the scale of penalties found
in Article 27 of the Revised Penal Code.
so that if it is voted down, the Body would
discontinue discussing Senate Bill No.
891 pursuant to the Rules, but if
approved, a special committee, as agreed
upon in the caucus, is going to be
appointed and whatever course it will take
will depend upon the mandate given to it
by the Body later on.
The Chair affirmed Senator Tolentino's
observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would
vote whether or not death as a penalty will
be reincorporated in the scale of penalties
provided by the Revised Penal Code.
However, he pointed out that if the Body
decides in favor of death penalty, the
Body would still have to address two
issues: 1) Is the crime for which the death
penalty is supposed to be imposed
heinous pursuant to the constitutional
mandate? 2) And, if so, is there a
compelling reason to impose the death
penalty for it? The death penalty, he
stressed, cannot be imposed simply
because the crime is heinous. 28
With seventeen (17) affirmative votes and seven
(7) negative votes and no abstention, the Chair
declared that the Senate has voted to re-
incorporate death as a penalty in the scale of
penalties as provided in the Revised Penal Code.
A nine-person committee was subsequently
created to draft the compromise bill pursuant to
said vote. The mandate of the committee was to
retain the death penalty, while the main debate in
the committee would be the determination of the
crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman
of the Special Committee on the Death Penalty, delivered
his Sponsorship Speech. He began with an explanation
as to why the Senate Bill No. 891 re-imposes the death
penalty by amending the Revised Penal Code and other
special penal laws and includes provisions that do not
define or punish crimes but serve purposes allied to the
re-imposition of the death penalty. Senator Tolentino
stated:
. . . [W]hen the Senate approved the
policy of reimposing the death penalty on
heinous crimes and delegated to the
Special Committee the work of drafting a
bill, a compromise bill that would be the
subject for future deliberations of this
Body, the Committee had to consider that
the death penalty was imposed originally
in the Revised Penal Code.
So, when the Constitution was approved
in order to do away with the death penalty,
unless Congress should, for compelling
reasons reimpose that penalty on heinous
crimes, it was obvious that it was the
Revised Penal Code that was affected by
that provision of the Constitution. The
death penalty, as provided in the Revised
Penal Code, would be considered as
having been repealed-all provisions on
the death penalty would be considered as
having been repealed by the Constitution,
until Congress should, for compelling
reasons, reimpose such penalty on
heinous crimes. Therefore, it was not only
one article but many articles of the
Revised Penal Code that were actually
affected by the Constitution.
And it is in consideration of this
consequence of the constitutional
provision that our Special Committee had
to consider the Revised Penal Code itself
in making this compromise bill or text of
the bill. That is why, in the proposed draft
now under consideration which we are
sponsoring, the specific provisions of the
Revised Penal Code are actually either
reenacted or amended or both. Because
by the effect of the Constitution, some
provisions were totally repealed, and they
had to be reenacted so that the provisions
could be retained. And some of them had
to be amended because the Committee
thought that amendments were proper. 29
In response to a query by Senator Gloria
Macapagal-Arroyo as to whether or not it would
have been better if the Senate were to enact a
special law which merely defined and imposed the
death penalty for heinous crimes, Senator
Tolentino explicated, thus:
. . . [T]hat may be a way presenting the
bill. But we must bear in mind that the
death penalty is imposed in the Revised
Penal Code. Therefore, when the
Constitution abolished the death penalty,
it actually was amending the Revised
Penal Code to such an extent that the
Constitution provides that where the
death penalty has already been imposed
but not yet carried out, then the penalty
shall be reclusion perpetua, that is the
penalty in the Revised Penal Code. So we
thought that it would be best to just amend
the provisions of the Revised Penal Code,
restoring the death penalty for some
crimes that may be considered as
heinous. That is why the bill is in this form
amending the provisions of the Revised
Penal Code.
 Of course, if some people want to present
a special bill . . . the whole trouble is, when
a special bill is presented and we want to
punish in the special bill the case of
murder, for instance, we will have to
reproduce the provisions of the Revised
Penal Code on murder in order to define
the crime for which the death penalty shall
be imposed. Or if we want to impose the
death penalty in the case of kidnapping
which is punished in the Revised Penal
Code, we will do the same — merely
reproduce. Why will we do that? So we
just followed the simpler method of
keeping the definition of the crime as the
same and merely adding some
aggravating circumstances and
reimposing the death penalty in these
offenses originally punished in the
Revised Penal Code. 30
From March 17, 1993, when the death penalty bill was
presented for discussion until August 16, 1993, the
Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator
Lina who kept prodding the sponsors of the bill to state
the compelling reason for each and every crime for which
the supreme penalty of death was sought. Zeroing in on
the statement in the preamble of the death penalty bill that
the same is warranted in the face of "the alarming upsurge
of [heinous] crimes", Senator Lina demanded for solid
statistics showing that in the case of each and every crime
in the death penalty bill, there was a significantly higher
incidence of each crime after the suspension of the death
penalty on February 2, 1987 when the 1987 Constitution
was ratified by the majority of the Filipino people, than
before such ratification.31 Inasmuch as the re-
impositionists could not satisfy the abolitionists with
sufficient statistical data for the latter to accept the
alarming upsurge of heinous crimes as a compelling
reason justifying the re-imposition of the death penalty,
Senator Lina concluded that there were, in fact, no
compelling reasons therefor. In the alternative, Senator
Lina argued that the compelling reason required by the
constitution was that "the State has done everything in its
command so that it can be justified to use an inhuman
punishment called death penalty". 32 The problem,
Senator Lina emphasized, was that even the re-
impositionists admit that there were still numerous
reforms in the criminal justice system that may and must
be put in place, and so clearly, the recourse to the
enactment of a death penalty bill was not in the nature of
a last resort, hence, unconstitutional in the absence of
compelling reasons. As an initial reaction to Senator
Lina's contentions, Senator Tolentino explained that the
statement in the preamble is a general one and refers to
all the crimes covered by the bill and not to specific
crimes. He added that one crime may not have the same
degree of increase in incidence as the other crimes and
that the public demand to impose the death penalty is
enough compelling reason. 33
Equally fit to the task was Senator Wigberto Tanada to
whom the battle lines were clearly drawn. He put to issue
two things: first, the definition of "heinous crimes" as
provided for in the death penalty bill; and second, the
statement of compelling reasons for each and every
capital crime. His interpellation of Senator Tolentino
clearly showed his objections to the bill:
Senator Tanada. . . . But what would
make crimes heinous, Mr. President? Are
crimes heinous by their nature or
elements as they are described in the bill
or are crimes heinous because they are
punished by death, as bribery and
malversation are proposed to be
punished in the bill?
Senator Tolentino. They are heinous by
their nature, Mr. President, but that is not
supposed to be the exclusive criterion.
The nature of the offense is the most
important element in considering it
heinous but at the same time, we should
consider the relation of the offense to
society in order to have a complete idea
of the heinous nature of these offenses.
In the case of malversation or bribery, for
instance, these offenses by themselves
connected with the effect upon society
and the government have made them fall
under the classification of heinous crimes.
The compelling reason for imposing the
death penalty is when the offenses of
malversation and bribery becomes so
grave and so serious as indicated in the
substitute bill itself, then there is a
compelling reason for the death penalty.
Senator Tanada. With respect to the
compelling reasons. Mr. President, does
the Gentleman believe that these
compelling reasons, which would call for
the reimposition of the death penalty,
should be separately, distinctly and
clearly stated for each crime so that it will
be very clear to one and all that not only
are these crimes heinous but also one can
see the compelling reasons for the
reimposition of the death penalty
therefor?
Senator Tolentino. Mr. President that
matter was actually considered by the
Committee. But the decision of the
Committee was to avoid stating the
compelling reason for each and every
offense that is included in the substitute
measure. That is why in the preamble,
general statements were made to show
these compelling reasons. And that we
believe, included in the bill, when
converted into law, would be sufficient
notice as to what were considered
compelling reasons by the Congress, in
providing the death penalty for these
different offenses.
If a matter like this is questioned before
the Supreme Court, I would suppose that
with the preamble already in general
terms, the Supreme Court would feel that
it was the sense of Congress that this
preamble would be applicable to each and
every offense described or punishable in
the measure.
So we felt that it was not necessary to
repeat these compelling reasons for each
and every offense.
Senator Tanada. Mr. President, I am
thinking about the constitutional
limitations upon the power of Congress to
enact criminal legislation, especially the
provisions on the Bill of Rights,
particularly the one which says that no
person shall be held to answer for a
criminal offense without due process of
law.
Can we not say that under this provision,
it is required that the compelling reasons
be so stated in the bill so that the bill,
when it becomes a law, will clearly define
the acts and the omissions punished as
crimes?
Senator Tolentino. Mr. President I believe
that in itself, as substantive law, this is
sufficient. The question of whether there
is due process will more or less be a
matter of procedure in the compliance
with the requirements of the Constitution
with respect to due process itself which is
a separate matter from the substantive
law as to the definition and penalty for
crimes.
Senator Tanada. Under the Constitution,
Mr. President, it appears that the
reimposition of the death penalty is
subject to three conditions and these are:
1. Congress should so provide such reimposition of the
death penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution,
paragraph 1, Section 13, does the
distinguished Gentleman not feel that
Congress is bound to state clearly the
compelling reasons for the reimposition of
the death penalty for each crime, as well
as the elements that make each of the
crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a
matter of opinion already. I believe that
whether we state the compelling reasons
or not, whether we state why a certain
offense is heinous, is not very important.
If the question is raised in the Supreme
court, it is not what we say in the bill that
will be controlling but what the Supreme
Court will fell as a sufficient compelling
reason or as to the heinous nature
whether the crime is heinous or not. The
accused can certainly raise the matter of
constitutionality but it will not go into the
matter of due process. It will go into the
very power of Congress to enact a bill
imposing the death penalty. So that would
be entirely separate from the matter of
due process. 34
Senator Francisco Tatad, on his part, pointed out that the
death penalty bill violated our international commitment in
support of the worldwide abolition of capital punishment,
the Philippines being a signatory to the International
Covenant on Civil and Political Rights and its Second
Optional Protocol. Senator Ernesto Herrera clarified,
however, that in the United Nations, subject matters are
submitted to the different committees which vote on them
for consideration in the plenary session. He stressed that
unless approved in the plenary session, a declaration
would have no binding effect on signatory countries. In
this respect, the Philippines cannot be deemed
irrevocably bound by said covenant and protocol
considering that these agreements have reached only the
committee level. 35
After the protracted debate, the Members of the Senate
voted on Senate Bill No. 891 on third reading. With
seventeen (17) affirmative votes, four (4) negative votes,
and one abstention, the death penalty bill was approved
on third reading on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third
reading on August 16, 1993 was a vindication of, the
House of Representatives. The House had, in the Eight
Congress, earlier approved on third reading House Bill
No. 295 on the restoration of the death penalty for certain
heinous crimes. The House was in effect rebuffed by the
Senate when the Senate killed House Bill No. 295 along
with other bills coming from the House. House Bill No. 295
was resurrected during the Ninth Congress in the form of
House Bill No. 62 which was introduced by twenty one
(21) Members of the House of Representatives on
October 27, 1992. House Bill No. 62 was a merger of
House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565,
1586, 2206, 3238, 3576 and 3632 authored by various
Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R.
Sanchez of Rizal ably essayed the constitutional vesting
in Congress of the power to re-impose the death penalty
for compelling reasons invoking heinous crimes as well
as the nature of this constitutional pre-requisite to the
exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution
reads, a I quote:
Neither shall death penalty be imposed,
unless, for compelling reasons involving
heinous crimes, the Congress shall
thereafter provide for it. . .
The phrase "unless, for compelling
reasons involving heinous crimes, the
Congress shall thereafter provide for it
was introduced as an amendment by then
Comm. Christian Monsod.
The import of this amendment is
unmistakable. By this amendment, the
death penalty was not completely
abolished by the 1987 Constitution.
Rather, it merely suspended the death
penalty and gave Congress the discretion
to review it at the propitious time.
Arguing for the inclusion of said
amendment in the fine provision, Comm.
Ricardo Romulo said, and I quote:
"The people should have the final
say on the subject, because, at some
future time, the people might want to
restore death penalty through initiative
and referendum.
Commissioner Monsod further argued,
and I quote:
We cannot presume to have the
wisdom of the ages. Therefore, it is
entirely possible in the future that
circumstances may arise which we should
not preclude today.
xxx xxx xxx
I believe that [there] are enough
compelling reasons that merit the
reimposition of the capital punishment.
The violent manner and the viciousness in
which crimes are now committed with
alarming regularity, show very clearly a
patent disregard of the law and a mockery
of public peace and order.
In the public gallery section today are the
relatives of the vict ims of heinous crimes
— the Hultmans, the Maguans, the
Vizcondes, the Castanoses, and many
more, and they are all crying for justice.
We ought to listen to them because their
lives, their hopes, their dreams, their
future have fallen asunder by the cruel
and vicious criminality of a few who put
their selfish interest above that of society.
Heinous crime is an act or series of acts
which, by the flagrantly violent manner in
which the same was committed or by the
reason of its inherent viciousness, shows
a patent disregard and mockery of the
law, public peace and order, or public
morals. It is an offense whose essential
and inherent viciousness and atrocity are
repugnant and outrageous to a civilized
society and hence, shock the moral self of
a people.
Of late, we are witness to such kind of
barbaric crimes.
The Vizconde massacre that took the
lives of a mother and her two lovely
daughters, will stand in the people's
memory for many long years as the
epitome of viciousness and atrocity that
are repugnant to civilized society.
The senseless murder of Eldon Maguan,
and up-and-coming young business
executive, was and still is an outrage that
shocks the moral self of our people.
The mind-boggling death of Maureen
Hultmann, a comely 16 year-old high
school student who dreamt of becoming a
commercial model someday, at the hands
of a crazed man was so repulsive, so
brutal that it offends the sensibilities of
Christians and non-Christians alike.
The cold-blooded double murder of
Cochise Bernabe and Beebom Castanos,
the lovely and promising couple from the
University of the Philippines, is eternally
lodged in the recesses of our minds and
still makes our stomach turn in utter
disgust.
xxx xxx xxx
The seriousness of the situation is such
that if no radical action is taken by this
body in restoring death penalty as a
positive response to the overwhelming
clamor of the people, then, as Professor
Esteban Bautista of the Philippine Law
Center said and I quote:
"When people begin to
believe that organized
society is unwilling or
unable to impose upon
criminal offenders the
punishment they deserve,
there are sown the seeds
of anarchy — of self-help,
of vigilante justice and
lynch law. The people will
take the law upon their
hands and exact
vengeance in the nature
of personal vendetta."
It is for this reason, Mr. Speaker, that I
stand here and support House Bill No. 62.
 As duly elected Representatives of our
people, collectively, we ought to listen to
our constitutents and heed their plea — a
plea for life, liberty and pursuit of their
happiness under a regime of justice and
democracy, and without threat that their
loves ones will be kidnapped, raped or
butchered.
But if such a misfortune befalls them,
there is the law they could rely on for
justice. A law that will exact retribution for
the victims. A law that will deter future
animalistic behavior of the criminal who
take their selfish interest over and above
that of society. A law that will deal a
deathblow upon all heinous crimes.
Mr. Speaker, my distinguished
colleagues, for the preservation of all that
we hold dear and sacred, let us retore the
death penalty. 36
A studious comparison of the legislative proceedings in
the Senate and in the House of Representatives reveals
that, while both Chambers were not wanting of oppositors
to the death penalty, the Lower House seemed less
quarrelsome about the form of the death penalty bill as a
special law specifying certain heinous crimes without
regard to the provisions of the Revised penal Code and
more unified in the perception of what crimes are heinous
and that the fact of their very heinousness involves the
compulsion and the imperative to suppress, if not
completely eradicate, their occurrence. Be it the foregoing
general statement of Representative Sanchez or the
following details of the nature of the heinous crimes
enumerated in House Bill No. 62 by Representative
Miguel L. Romero of Negros Oriental, there was clearly,
among the hundred or so re-impositionists in the Lower
House, no doubt as to their cause:
My friends, this bill provides for the
imposition of the death penalty not only for
the importation, manufacture and sale of
dangerous drugs, but also far other
heinous crimes such as reason; parricide;
murder; kidnapping; robbery; rape as
defined by the Revised Penal Code with
or without additionally defined
circumstances; plunder, as defined in
R.A. 7080; piracy, as defined under
Section 2 of PD 532: carnapping, as
defined in Section 2 of RA 6539, when the
owner, driver or occupant is killed;
hijacking as defined in . . . RA 6235; and
arson resulting in the death of any
occupants.
All these crimes have a common
denominator which qualifies them to the
level of heinous crimes. A heinous crime
is one which by reason of its inherent or
manifest wickedness, viciousness,
atrocity or perversity, is repugnant and
outrageous to the common standards of
decency and morality in a just and
civilized society.
For instance, the crime of treason is
defined as a breach of allegiance to a
government, committed by a person who
owes allegiance to it (U.S. v. Abad I Phil.
437). By the "allegiance" is meant the
obligation of fidelity and obedience which
individuals owe to the government under
which they live or to their sovereign in
return for the protection which they
receive (52 Arm Jur 797).
In kidnapping, the though alone of one's
loved one being held against his or her
own will in some unidentified xxx house by
a group of scoundrels who are strangers
is enough terrify and send shivers of fear
through the spine of any person, even
scoundrels themselves.
In robbery accompanied by rape,
intentional mutilation or arson, what is
being punished by death is the fact that
the perpetrator, at the time of the
commission of the crime, thinks nothing of
the other crime he commits and sees it
merely as a form of self-amusement.
When a homicide is committed by reason
of the robbery, the culprits are perceived
as willing to take human life in exchange
for money or other personal property.
In the crime of rape, not only do we speak
of the pain and agony of the parents over
the personal shock and suffering of their
child but the stigma of the traumatic and
degrading incident which has shattered
the victim's life and permanently
destroyed her reputation, not to mention
the ordeal of having to undergo the
shameful experience of police
interrogation and court hearings.
Piracy, which is merely a higher form of
robbery, is punished for the universal
hostility of the perpetrators against their
victims who are passengers and
complement of the vessel, and because of
the fact that, in the high seas, no one may
be expected to be able to come to the
rescue of the helpless victims. For the
same reason, Mr. Speaker, the crime of
air piracy is punished due to the evil
motive of the hijackers in making
unreasonable demands upon the
sovereignty of an entire nation or nations,
coupled with the attendant circumstance
of subjecting the passengers to
terrorism. 37
The debate on House Bill No. 62 lasted from October 27,
1992 to February 11, 1993. On February 11, 1993, the
Members of the House of Representatives
overwhelmingly approved the death penalty bill on
second reading.
On February 23, 1993, after explaining their votes, the
Members of the House of Representatives cast their vote
on House Bill No. 62 when it was up for consideration on
third reading. 38 The results were 123 votes in favor, 26
votes against, and 2 abstentions.
After the approval on third reading of House Bill No. 62 on
February 23, 1993 and of Senate Bill No. 891 on August
16, 1993, the Bicameral Conference Committee
convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659,
entitled, "An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised
Penal Code, as Amended, Other Special Penal Laws, and
for Other Purposes," took effect. 39
Between December 31, 1993, when R.A No. 7659 took
effect, and the present time, criminal offenders have been
prosecuted under said law, and one of them, herein
accused-appellant has been, pursuant to said law, meted
out the supreme penalty of death for raping his ten-year
old daughter. Upon his conviction his case was elevated
to us on automatic review. On June 25, 1996, we affirmed
his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this
court's affirmation of his death sentence and raises for the
first time the issue of the constitutionality of R.A. 7659. His
thesis is two-fold: (1) that the death penalty law is
unconstitutional per se for having been enacted in the
absence of compelling reasons therefor; and (2) that the
death penalty for rape is a cruel, excessive and inhuman
punishment in violation of the constitutional proscription
against punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing
with accused-appellant's view that Congress enacted R.A
No. 7659 without complying with the twin requirements of
compelling reasons and heinous crimes.
At this juncture, the detailed events leading to the
enactment of R.A. No. 7659 as unfurled in the beginning
of this disquisition, necessarily provide the context for the
following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly
vests in Congress the power to re-impose the death
penalty "for compelling reasons involving heinous
crimes". This power is not subsumed in the plenary
legislative power of Congress, for it is subject to a clear
showing of "compelling reasons involving heinous
crimes."
The 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 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."
In the second whereas clause of the preamble of R.A. No.
7659, we find the definition or description of heinous
crimes. Said clause provides that:
. . . the crimes punishable by death under
this Act are heinous for being grievous,
odious and hateful offenses and 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 ordered society.
Justice Santiago Kapunan, in his dissenting
opinion in People v. Alicando, 40 traced the
etymological root of the word "heinous" to the
Early Spartans' word, "haineus", meaning hateful
and abominable, which in turn, was from the
Greek prefix "haton", denoting acts so hatefully or
shockingly evil.
We find the foregoing definition or description to be a
sufficient criterion of what is to be considered a heinous
crime. This criterion is deliberately undetailed as to the
circumstances of the victim, the accused, place, time, the
manner of commission of crime, its proximate
consequences and effects on the victim as well as on
society, to afford the sentencing authority sufficient
leeway to exercise his discretion in imposing the
appropriate penalty in cases where R.A. No 7659
imposes not a mandatory penalty of death but the more
flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill,
Senators Lina and Tañada grilled the sponsors of the bill
as regards what they perceived as a mere enumeration of
capital crimes without a specification of the elements that
make them heinous. They were oblivious to the fact that
there were two types of crimes in the death penalty bill:
first, there were crimes penalized by reclusion
perpetua to death; and second, there were crimes
penalized by mandatory capital punishment upon the
attendance of certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized
by reclusion perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by
any of the following four circumstances: (a) the victim was
detained for more than three days; (6) it was committed
simulating public authority; (c) serious physical injuries
were inflicted on the victim or threats to kill him were
made; and (d) if the victim is a minor, except when the
accused is any of the parents, female or a public officer
(Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation
(Sec. 9);
(8) Destructive arson if what is burned is (a) one or more
buildings or edifice; (b) a building where people usually
gather; (c) a train, ship or airplane for public use: (d) a
building or factory in the service of public utilities: (e) a
building for the purpose of concealing or destroying
evidence of a crime: (f) an arsenal, fireworks factory, or
government museum: and (g) a storehouse or factory of
explosive materials located in an inhabited place; or
regardless of what is burned if the arson is perpetrated by
two or more persons(Sec. 10);
(9) Rape attended by any of the following circumstances:
(a) the rape is committed with a deadly weapon; (b) the
rape is committed by two or more persons: and (c) the
rape is attempted or frustrated and committed with
homicide (Sec. 11);
(10) Plunder involving at least P50 million(Sec. 12);
(11) Importation of prohibited drugs (Sec. 13),
(12) Sale, administration delivery, distribution, and
transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain
specified amounts (id.)
(16) Cultivation of plants which are sources of prohibited
drugs (id.)
(17) Importation of regulated drugs (Sec. 1J):
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery,
transportation, and distribution of regulated drugs (id.):
(20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15),
(21) Possession or use of regulated drugs in specified
amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account
dangerous drugs confiscated by the arresting officer (Sec.
17);
(23) Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter (Sec.
19); and
(24) Carnapping where the owner, driver or occupant of
the carnapped motor vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per
se, the uniform penalty for all of them being not
mandatory death but the flexible penalty
of reclusion perpetua to death. In other words, it
is premature to demand for a specification of the
heinous elements in each of the foregoing crimes
because they are not anyway mandatorily
penalized with death. The elements that call for
the imposition of the supreme penalty of death in
these crimes, would only be relevant when the
trial court, given the prerogative to
impose reclusion perpetua, instead actually
imposes the death penalty because it has, in
appreciating the evidence proffered before it,
found the attendance of certain circumstances in
the manner by which the crime was committed, or
in the person of the accused on his own or in
relation to the victim, or in any other matter of
significance to the commission of the crime or its
effects on the victim or on society, which
circumstances characterize the criminal acts as
grievous, odious, or hateful, or inherently or
manifestly wicked, vicious, atrocious or perverse
as to be repugnant and outrageous to the
common standards and norms of decency and
morality in a just, civilized and ordered society.
On the other hand. under R.A. No 7659, the mandatory
penalty of death is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law
enforcement and he refrains from
arresting or prosecuting an offender who
has committed a come punishable
by reclusion perpetua and/or death in
consideration of any offer, promise, gift or
present, he shall suffer the penalty for the
offense which was not prosecuted
If it is the public officer who asks or
demands such gift or present, he shall
suffer the penalty of death. (Sec. 4)
(2) Kidnapping and serious illegal
detention for ransom resulting in the death
of the victim or the victim is raped tortured
or subjected to dehumanizing acts
"The penalty shall be death where the
kidnapping or detention was committed
for the purpose of ransom from the victim
or any other person, even if none of the
circumstances above-mentioned were
present in the commission of the offense.
When the victim is killed or dies as a
consequence of the detention " is raped,
or is subject to torture or dehumanizing
acts, the maximum penalty [of death] shall
be imposed. (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission
of any of the acts penalized under this
Article, death results, the mandatory
penalty of death shall be imposed." (Sec.
10)
(4) Rape with the victim becoming insane,
rape with homicide and qualified rape
"When by reason or on the occasion of the
rape, the victim has become insane, the
penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the
rape, a homicide is committed, the penalty
shall be death.
The death penalty shall also be Imposed
if the crime of rape is committed with any
of the following attendant circumstances:
1. When the victim is under eighteen (18)
years of age and the offender is parent,
ascendant, step-parent, guardian, relative
by consanguinity or affinity within the third
civil degree, or the common-law spouse of
the parent of the victim.
2. when the victim is under the custody of
the police or military authorities.
3. when the rape is committed in full new
of the husband, parent, any of the children
or other relatives within the third degree of
consanguinity.
4. when the victim is a religious or a child
below seven (7) years old.
5. when the offender that he is afflicted
with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6. when committal by any member of the
Armed Forces of the Philippines or the
Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of
the rape, the victim has suffered
permanent physical mutilation. (Sec. 11)
(5) Sale, administration, delivery,
distribution and transportation of
prohibited drugs where the victim is a
minor or the victim dies
"Notwithstanding, the provision of Section
20 of this Act to the contrary, if the victim
of the offense is a minor, or should a
prohibited drug involved in any offense
under this Section be the proximate cause
of the death of victim thereof; the
maximum penalty [of death] herein
provided shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for
users of prohibited drugs where the victim
is a minor or the victim dies
"Notwithstanding the provisions of
Section 20 of this Act to the contrary, the
maximum of the penalty (of death) shall
be imposed in every case where a
prohibited drug is administered, delivered
or sold to a minor who is allowed to use
the same in such place.
Should a prohibited drug be the proximate
case of the death of a person using the
same in such den, dive or resort, the
maximum penalty herein provided shall
be imposed on the maintainer
notwithstanding the provisions of Section
20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation,
delivery, distribution and transportation of
regulated drugs where the victim is a
minor or the victim dies
"Notwithstanding the provisions of
Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should
a regulated drug involved in any offense
under this Section be the proximate cause
of the death of a victim thereof, the
maximum penalty [of death] herein
provided shall be imposed." (Sec. 14)
(8) Maintenance of den, dive. or resort for
users of regulated drugs where the victim
is a minor or the victim dies
'Notwithstanding the provisions of Section
20 of this Act to the contrary, the
maximum penalty [of death] herein
provided shall be imposed in every case
where a regulated drug is administered,
delivered or sold to a minor who is allowed
to use the same in such place.
Should a regulated drug be the proximate
cause of death of a person using the
same in such den, dive or resort, the
maximum penalty herein provided shall
be imposed on the maintainer
notwithstanding the provisions of Section
20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are
government officials, employees or
officers including members of police
agencies and armed forces
"The maximum penalties [of death]
provided for in Section 3, 4 (1), 5 (1 ), 6,
7, 8. R, 9 1 1, 12 and 13 of Article II and
Sections 14, 14-A, 14 ( 1), 15A (1), 16,
and 19 of Article III [of the Dangerous
Drugs Act of 1972] shall be imposed, if
those found guilty of any of the same
offenses are government officials,
employees or officers including members
of police agencies and the armed forces.
" (Sec. 19)
(10) Planting of dangerous drugs as
evidence in drug offenses with the
mandatory death penalty if convicted are
government officials, employees or
officers
"Any such above government official,
employee or officer who is round guilty of
planting any dangerous drugs punished in
Section s 3, 4, 7, 8, 9 and 13 of Article II
and Sections 14, 14-A, 15, and 16 of
Article III (of the Dangerous Drugs Act of
1972) in the person or in the immediate
vicinity of another as evidence to implicate
the latter, shall suffer the same penalty as
therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in
their qualified form
"When in the commission of the crime,
advantage was taken by the offends of his
public position, the penalty to be imposed
shall be in its maximum [of death]
regardless of mitigating circumstances.
The maximum penalty [of death] shall be
imposed if the offense was committed by
any person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group
means a group of two or more persons
collaborating, confederating or mutually
helping one another for purposes of gain
in the commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes that
the test of heinousness must be squarely applied.
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated
like an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human
being. The right of a person is not only to live but to live a
quality life, and this means that the rest of society is
obligated to respect his or her individual personality, the
integrity and the sanctity of his or her own physical body,
and the value he or she puts in his or her own spiritual,
psychological, material and social preferences and
needs. Seen in this light, the capital crimes of kidnapping
and serious illegal detention for ransom resulting in the
death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson
resulting in death; and drug offenses involving minors or
resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide,
kidnapping and serious illegal detention where the victim
is detained for more than three days or serious physical
injuries were indicted on the victim or threats to kill him
were made or the victim is a minor, robbery with homicide
rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by
their very nature.
There are crimes, however, in which the abomination lies
in the significance and implications of the subject criminal
acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be
struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and
impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of
corruption dishonesty, greed and Syndicated criminality
that so deeply entrenched itself in the structures of society
and the psyche of the populace. Terribly lacking the
money to provide even the most basic services to its
people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the
very existence of government, and in turn, the very
survival of the people it governs over. Viewed in this
context, no less heinous are the effects and
repercussions of crimes like qualified bribery, destructive
arson resulting in death, and drug offenses involving
government officials, employees or officers, that their
perpetrators must not be allowed to cause further
destruction and damage to society.
We have no doubt, therefore, that insofar as the element
of heinousness is concerned, R.A. No. 7659 has correctly
identified crimes warranting the mandatory penalty of
death. As to the other crimes in R.A No 7659 punished
by reclusion perpetua to death, they are admittingly no
less abominable than those mandatorily penalized by
death. The proper time to determine their heinousness in
contemplation of law, is when on automatic review, we are
called to pass on a death Sentence involving crimes
punishable by reclusion perpetua to death under R.A. No.
7659, with the trial court meting out the death sentence in
exercise of judicial discretion. This is not to say, however,
that the aggravating circumstances under the Revised
Penal Code need be additionally alleged as establishing
the heinousness of the crime for the trial Court to validly
impose the death penalty in the crimes under R.A. No.
7659 which are punished with the flexible penalty
of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or
repeal the provisions of the Revised Penal Code relating
to aggravating circumstances Secondly, R.A. No. 7659,
while it specifies circumstances that generally qualify a
crime provided therein to be punished by the maximum
penalty of death, neither amends nor repeals the
aggravating circumstances under the Revised Penal
Code. Thus, construing R.A. No. 7659 in pari materia with
the Revised Penal Code, death may be imposed when (1)
aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the
commission of the crime which indubitably characterize
the same as heinous in contemplation of R.A. No. 7659
that justify the imposition of death, albeit the imposable
penalty is reclusion perpetua to death. Without difficulty,
we understand the rationale for the guided discretion
granted in the trial court to cognize circumstances that
characterize the commission of the crime as heinous.
Certainly there is an infinity of circumstances that may
attend the commission of a crime to the same extent that
there is no telling the evil that man is capable of. The
legislature cannot and need not foresee and inscribe in
law each and every loathsome act man is capable of. It is
sufficient thus that R.A. No. 7659 provides the test and
yardstick for the determination of the legal situation
warranting the imposition of the supreme penalty of
death. Needless to say, we are not unaware of the ever
existing danger of abuse of discretion on the part of the
trial court in meting out the death sentence. Precisely to
reduce to nil the possibility of executing an innocent man
or one criminal but not heinously criminal, R.A. No. 7659
is replete with both procedural and substantive
safeguards that ensure only the correct application of the
mandate of R.A. No. 7659.
In the course of the congressional debates on the
constitutional requirement that the death penalty be re-
imposed for compelling reasons involving heinous crimes,
we note that the main objection to the death penalty bill
revolved around the persistent demand of the abolitionists
for a statement of the compelling reason in each and
every heinous crime and statistical proof that such
compelling reason actually exists.
We believe, however, that the elements of heinousness
and compulsion are inseparable and are, in fact,
interspersed with each other. Because the subject crimes
are either so revolting and debasing as to violate the most
minimum of the human standards of decency or its
effects, repercussions, implications and consequences so
destructive, destabilizing, debilitating, or aggravating in
the context of our socio-political and economic agenda as
a developing nation, these crimes must be frustrated,
curtailed and altogether eradicated. There can be no its
or buts in the face of evil, and we cannot afford to wait
until we rub elbows with it before grasping it by the ears
and thrashing it to its demission.
The abolitionists in congress insisted that all criminal
reforms first be pursued and implemented before the
death penalty be re-imposed in case such reforms prove
unsuccessful They claimed that the only compelling
reason contemplated of by the constitution is that nothing
else but the death penalty is left for the government to
resort to that could check the chaos and the destruction
that is being caused by unbridled criminality. Three of our
colleagues, are of the opinion that the compelling reason
required by the constitution is that there occurred a
dramatic and significant change in the socio-cultural
milieu after the suspension of the death penalty on
February 2, 1987 such as an unprecedented rise in the
incidence of criminality. Such are, however,
interpretations only of the phrase "compelling; reasons"
but not of the conjunctive phrase "compelling reasons
involving heinous crimes". The imposition of the
requirement that there be a rise in the incidence of
criminality because of the suspension of the death
penalty, moreover, is an unfair and misplaced demand,
for what it amounts to, in fact, is a requirement that the
death penalty first proves itself to be a truly deterrent
factor in criminal behavior. If there was a dramatically
higher incidence of criminality during the time that the
death penalty was suspended, that would have proven
that the death penalty was indeed a deterrent during the
years before its suspension. Suffice it to say that the
constitution in the first place did not require that the death
penalty be first proven to be a deterrent; what it requires
is that there be compelling reasons involving heinous
crimes.
Article III, Section 19(1) of the 1987 Constitution simply
states that congress, for compelling reasons involving
heinous crimes, may re-impose the death penalty.
Nothing in the said provision imposes a requirement that
for a death penalty bill to be valid, a positive manifestation
in the form of a higher incidence of crime should first be
perceived and statistically proven following the
suspension of the death penalty. Neither does the said
provision require that the death penalty be resorted to as
a last recourse when all other criminal reforms have failed
to abate criminality in society It is immaterial and
irrelevant that R.A. No. 7659 cites that there has been an
"alarming upsurge of such crimes", for the same was
never intended by said law to be the yardstick to
determine the existence of compelling reasons involving
heinous crimes. Fittingly, thus, what R.A. No. 7659 states
is that "the Congress, in the interest of justice, public order
and rule of law, and the need to rationalize and harmonize
the penal sanctions for heinous crimes, finds compelling
reasons to impose the death penalty for said crimes."
We now proceed to answer accused-appellant's other
ground for attacking the constitutionality of R.A. No.
7659, i.e., that the death penalty imposed in rape is
violative of the constitutional proscription against cruel,
degrading or inhuman punishment.
Accused-appellant first claims that the death penalty
is per se a cruel, degrading or inhuman punishment as
ruled by the United States (U.S.) Supreme Court in
Furman v. Georgia. 41 To state, however, that the U.S.
Supreme Court, in Furman, categorically ruled that the
death penalty is a cruel, degrading or inhuman
punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself
but the arbitrariness pervading the procedures by which
the death penalty was imposed on the accused by the
sentencing jury. Thus, the defense theory
in Furman centered not so much on the nature of the
death penalty as a criminal sanction but on the
discrimination against the black accused who is meted out
the death penalty by a white jury that is given the
unconditional discretion to determine whether or not to
impose the death penalty. In fact, the long road of the
American abolitionist movement leading to the landmark
case of Furman was trekked by American civil rights
advocates zealously fighting against racial discrimination.
Thus, the U.S. Supreme Court stated in Furman:
We cannot say from facts disclosed in
these records that these defendants were
sentenced to death because they were
black. Yet our task is not restricted to an
effort to divine what motives impelled
these death penalties. Rather, we deal
with a system of law and of justice that
leaves to the uncontrolled discretion of
judges or juries the determination whether
defendants committing these crimes
should die . . . .
xxx xxx xxx
In a Nation committed to equal protection
of the laws there is no permissible caste'
aspect of law enforcement. Yet we know
that the discretion of judges and juries in
imposing the death penalty enables the
penalty to be selectively applied feeding
prejudices against the accused if he is
poor and despised . . .
xxx xxx xxx
Thus, these discretionary statutes are
unconstitutional in their operation. They
are pregnant with discrimination and
discrimination is an ingredient not
compatible with the idea of equal
protection of the laws that is implicit in the
ban on cruel and unusual punishments.
Furman, thus, did not outlaw the death penalty because it
was cruel and unusual per se. While the U.S. Supreme
Court nullified all discretionary death penalty statutes
in Furman, it did so because the discretion which these
statutes vested in the trial judges and sentencing juries
was uncontrolled and without any parameters, guidelines,
or standards intended to lessen, if not altogether
eliminate, the intervention of personal biases, prejudices
and discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman when most of
the states re-enacted their death penalty statutes now
bearing the procedural checks that were required by the
U.S. Supreme Court, said court affirmed the
constitutionality of the new death penalty statutes in the
cases of Gregg v. Georgia, 42 Jurek v.
Texas,43 and Profitt v. Florida 44.
Next, accused-appellant asseverates that the death
penalty is a cruel, inhuman or degrading punishment for
the crime of rape mainly because the latter, unlike murder,
does not involve the taking of life. In support of his
contention, accused-appellant largely relies on the ruling
of the U.S. Supreme Court in Coker v. Georgia. 45
In Coker, the U.S Supreme Court ruled as follows:
. . . It is now settled that the death penalty
is not invariably cruel and punishment
within the meaning of Eight Amendment;
it is not inherently unacceptable mode of
punishment for crime; neither is it always
disproportionate to the crime for which it
is imposed. It is also established that
imposing capital punishment at least for
murder, in accordance with the
procedures provided under the Georgia
Statutes saves the sentence from the
infirmities which led the Court to invalidate
the prior Georgia capital punishment
statute in Furman v. Georgia . . .
xxx xxx xxx
In Gregg [v. Georgia] . . . the Court's
judgment was that the death penalty for
deliberate murder was neither the
purposeless Imposition of severe
punishment nor a punishment grossly
disproportionate to the crime. But the
Court reserved the question of the
constitutionality of the death penalty when
imposed for other crimes. . . .
That question, with respect to rape of an
adult woman, is now before us.
xxx xxx xxx
. . . [T]he public judgment with respect to
rape. as reflected in the statutes providing
the punishment for that crime, has been
dramatically different. In reviving death
penalty laws to satisfy Furman's mandate,
none of the states that had not previously
authorized death for rape chose to include
rape among capital felonies. Of the 16
States in which rape had been a capital
offense, only three provided the death
penalty for rape of an adult woman in their
revised statutes-Georgia, North Carolina
and Louisiana. In the latter two States, the
death penalty was mandatory for those
found guilty, and those laws were
invalidated by Woodson and Roberts.
When Louisiana and North Carolina
respondent to those decisions, again
revised their capital punishment laws,
they reenacted the death penalty for
murder but not for rape; none of the seven
other legislatures that to our knowledge
have amended or replaced their death
penalty statutes since July 2, 1976,
including four States (in addition to
Louisiana and North Carolina) that had
authorized the death sentence for rape
prior to 1972 and had reacted to Furman
with mandatory statutes, included rape
among the crimes for which death was an
authorized punishment.
xxx xxx xxx
It should be noted that Florida.
Mississippi, and Tennessee also
authorized the death penalty in some rape
cases, but only where the victim was a
child and the rapist an adult. the
Tennessee statute has since been
invalidated because the death sentence
was mandatory. x x x The upshot is that
Georgia is the sole jurisdiction in the
United States at the present time that
authorizes a sentence of death when the
rape victim is an adult woman, and only
two other jurisdictions provide capital
punishment when the victim is a child.
The current judgment with respect to the
death penalty for rape is not wholly
unanimous among state legislatures, but
it obviously weighs very heavily on the
side of rejecting capital punishment as a
suitable penalty for raping an adult
woman.
. . . [T]he legislative rejection of capital
punishment for rape strongly confirms our
own judgment, which is that death is
indeed a disproportionate penalty for the
crime of raping an adult woman.
We do not discount the seriousness of
rape as a crime. It is highly reprehensible,
both in a moral sense and in its almost
total contempt for the personal integrity
and autonomy of the female victim and for
the latter's privilege of choosing those
with whom intimate relationships are to be
established. Short of homicide, it is the
ultimate violation of self. It is also a violent
crime because it normally involves force,
or the threat of force or intimidation, to
over come the will and the capacity of the
victim to resist. Rape is very often
accompanied by physical injury to the
female and can also inflict mental and
psychological damage. Because it
undermines the community's sense of
security. there is public injury as well.
Rape is without doubt deserving of
serious punishment; but in terms of moral
depravity and of the injury to the person
and to the public. it does not compare with
murder, which does involve the unjustified
taking of human life. Although it may be
accompanied by another crime, rape by
definition does not include the death of or
even the serious injury to another person.
The murderer kills; the rapist, if no more
than that does not. Life is over for the
victim of the murderer; for the rape victim,
life may not be nearly so happy as it was,
but it is not over and normally is not
beyond repair. We have the abiding
conviction that the death penalty, which
"is unique in its severity and irrevocability"
. . . is an excessive penalty for the rapist
who, as such does not take human life.
The U.S. Supreme Court based its foregoing ruling on two
grounds: first, that the public has manifested its rejection
of the death penalty an a proper punishment for the crime
of rape through the willful omission by the state
legislatures to include rape in their in the aftermath
of Furman; and second, that rape, while concededly a
dastardly contemptuous violation of a woman's spiritual
integrity, physical privacy, and psychological balance,
does not involve the taking of life.
Anent the first ground, we fail to see how this could have
any bearing on the Philippine experience and in the
context of our own culture.
Anent the second ground, we disagree with the court's
predicate that the gauge of whether or not a crime
warrants the death penalty or not, is the attendance of the
circumstance of death on the part of the victim. Such a
premise is in fact an ennobling of the biblical notion of
retributive justice of "an eye for an eye, a tooth for a tooth".
We have already demonstrated earlier in our discussion
of heinous crimes that the forfeiture of life simply because
life was taken, never was a defining essence of the death
penalty in the context of our legal history and cultural
experience; rather, the death penalty is imposed in
heinous crimes because the perpetrators thereof have
committed unforgivably execrable acts that have so
deeply dehumanized a person or criminal acts with
severely destructive effects on the national efforts to lift
the masses from abject poverty through organized
governmental strategies based on a disciplined and
honest citizenry, and because they have so caused
irreparable and substantial injury to both their victim and
the society and a repetition of their acts would pose actual
threat to the safety of individuals and the survival of
government, they must be permanently prevented from
doing so. At any rate, this court has no doubts as to the
innate heinousness of the crime of rape, as we have held
in the case of People v. Cristobal: 46
Rape is the forcible violation of the sexual
intimacy of another person. It does injury
to justice and charity. Rape deeply
wounds the respect, Freedom, and
physical and moral integrity to which
every person has a right. It causes grave
damage that can mark the victim for life. It
is always an intrinsically evil act . . . an
outrage upon decency and dignity that
 hurts not only the victim but the society
itself
We are not unaware that for all the legal posturings we
have so essayed here, at the heart of the issue of capital
punishment is the wistful, sentimental life-and-death
question to which all of us, without thinking, would
answer, "life, of course, over death". But dealing with the
fundamental question of death provides a context for
struggling with even more basic questions, for to grapple
with the meaning of death is, in an indirect way to ask the
meaning of life. Otherwise put, to ask what the rights are
of the dying is to ask what the rights are of the living.
Capital punishment ought not to be
abolished solely because it is
substantially repulsive, if infinitely less
repulsive than the acts which invoke it.
Yet the mounting zeal for its abolition
seems to arise from a sentimentalized
hyperfastidiousness that seeks to
expunge from the society all that appears
harsh and suppressive. If we are to
preserve the humane society we will have
to retain sufficient strength of character
and will to do the unpleasant in order that
tranquility and civility may rule
comprehensively. It seems very likely that
capital punishment is a . . . necessary, if
limited factor in that maintenance of social
tranquility and ought to be retained on this
ground. To do otherwise is to indulge in
the luxury of permitting a sense of false
delicacy to reign over the necessity of
social survival. 47
WHEREFORE, in view of all the foregoing, the Motion for
Reconsideration and Supplemental Motion for
Reconsideration are hereby DENIED 48 for LACK OF
MERIT.
SO ORDERED
Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
Separate Opinions
Time has transformed man into a highly intellectual and
civilized, as well as, I wish to believe, a humane and
compassionate, being. The ancient edict of "an eye for an
eye, a tooth for a tooth" has since been abandoned by a
society that recognizes the good in every man and gives
a transgressor an opportunity to reform. Somehow,
however, certain vestiges of savage retribution still
remain; indeed, the taking of a human life continues, at
least in some penal systems, to be an acceptable
punishment.
In this country, the issue of whether or not the State
should impose the death penalty has recently been
resolved with the ratification, on 02 February 1987, of the
Constitution by 76.29% of the electorate. Section 19,
Article III, thereof, states:
Sec. 19. (1) Excessive fines shall not be
imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death
penalty be imposed, unless, for
compelling reasons involving heinous
crimes, the Congress hereafter provides
for it. Any death penalty already imposed
shall be reduced to reclusion perpetua.
Ours is a rule of law. The Supreme Court is not a political
entity; it can merely apply and interpret the law. It cannot.
and it will not, spare itself from this constitutionally-
mandated duty. Death penalty cases are not excepted. In
the discharge of its grave responsibility, nevertheless, the
Court must act with greatest caution and strictest
circumspection for there can be no stake that can be
higher, and no penalty that can be graver, than the
extinction by the State of human life.
The determination of when to prescribe the death penalty
now lies with the sound discretion of the law-making
authority, the Congress of the Philippines, subject to the
conditions that the fundamental law has set forth; viz:
(1) That there must be compelling reasons to justify the
imposition of the death penalty; and
(2) That the capital offense must involve a heinous crime.
It appears to me that the Constitution did not
contemplate a simple "reimposition" of the death
penalty to offenses theretofore already provided
in the Revised Penal Code or just because of it.
The term "compelling reasons" should be enough to
indicate that there must be a marked change in the milieu
from that which has prevailed at the time of adoption of
the 1987 Constitution, on the one hand, to that which
exists at the enactment of the statute prescribing the
death penalty, upon the other hand, that would make it
distinctively inexorable to mandate the death penalty.
That milieu must have turned from bad to worse.
Most importantly, the circumstances that would
characterize the "heinous nature" of the crime and make
it so exceptionally offensive as to warrant the death
penalty must be spelled out with great clarity in the law.
To venture, in the case of murder, the crime could
become "heinous" within the Constitutional concept
when, to exemplify, the victim is unnecessarily subjected
to a painful-and excruciating death, or in the crime of rape
when the offended party is callously humiliated or even
brutally killed by the accused.
I submit that, given the circumstances and the law before
us, the Constitutional fiat (now being raised for the first
time in the instant Motion for Reconsideration) in the
imposition of the death penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty
of reclusion perpetua (the next lower penalty than death).
Death Penalty Law Unconstitutional
In his Supplemental Motion for Reconsideration1 dated
August 22, 1996 filed by his newly-retained counsel,2 the
accused raises for the first time a very crucial ground for
his defense: that Republic Act No. 7659, the law
reimposing the death penalty, is unconstitutional. In the
Brief and (original) Motion for Reconsideration filed by his
previous counsel,3 this transcendental issue was not
brought up. Hence, it was not passed upon by this Court
in its Decision affirming the trial court's sentence of death.4
The Constitution Abolished Death Penalty
Section 19, Article III of the 1987 Constitution provides:
Sec. 19. (1) Excessive fines shall not be
imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death
penalty be imposed, unless
for compelling reasons involving heinous
crimes, the Congress hereafter provides
for it. Any death penalty already
imposed shall be reduced to reclusion
perpetua. (Emphasis supplied)
The second and third sentences of the above provision
are new and had nor been written in the 1935, 1973 or
even in the 1986 "Freedom Constitution." They proscribe
the imposition5 of the death penalty "unless for compelling
reasons involving heinous crimes, Congress provides for
it," and reduced "any death penalty already imposed"
to reclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the
penalty) and a retroactive one (it reduces imposed capital
sentence to the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the
Constitution did not merely suspend the imposition of the
death penalty, but in fact completely abolished it from the
statute books. The automatic commutation or reduction
to reclusion perpetua of any death penalty extant as of
the effectivity of the Constitution clearly recognizes that,
while the conviction of an accused for a capital crime
remains, death as penalty ceased to exist in our penal
laws and thus may no longer be carried out. This is the
clear intent of the framers of our Constitution. As Comm.
Bernas exclaimed,6 "(t)he majority voted for the
constitutional abolition of the death penalty."
Citing this and other similar pronouncements of the
distinguished Concom delegate, Mme. Justice Ameurfina
Melencio-Herrera emphasized,7 "It is thus clear that when
Fr. Bernas sponsored the provision regarding the non-
imposition of the death penalty, what he had in mind was
the total abolition and removal from the statute books of
the death penalty. This became the intent of the framers
of the Constitution when they approved the provision and
made it a part of the Bill of Rights." With such abolition as
a premise, restoration thereof becomes an exception to a
constitutional mandate. Being an exception and thus in
derogation of the Constitution, it must then be strictly
construed against the State and liber- ally in favor of the
people.8 In this light, RA 7659 enjoys no presumption of
constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1) effectively
removed the death penalty from the then existing statutes
but (2) authorized Congress to restore it at some future
time to enable or empower courts to reimpose it on
condition that it (Congress)9 finds "compelling reasons,
involving heinous crimes." The language of the
Constitution is emphatic (even if "awkward" 10): the
authority of Congress to "provide for it" is not absolute.
Rather, it is strictly limited:
(1) by "compelling
reasons" that may arise
after the Constitution
became effective; and
(2) to crimes which
Congress should identify
or define or characterize
as "heinous."
The Constitution inexorably placed upon Congress the
burden of determining the existence of "compelling
reasons and of defining what crimes are "heinous" before
it could exercise its law-making prerogative to restore the
death penalty. For clarity's sake, may I emphasize that
Congress, by law, prescribes the death penalty an certain
crimes: and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt
of committing said crimes.
In the exercise of this fundamental mandate, Congress
enacted RA 7659 11 to "Provide for it" (the death penalty)
(1) by amending certain provisions of the Revised Penal
Code; 12 (2) by incorporating a new article therein; 13 and
(3) by amending certain special laws. 14
But RA 7659 did not change the nature or the elements of
the crimes stated in the Penal Code and in the special
laws. It merely made the penalty more severe. Neither did
its provisions (other than the preamble, which was cast in
general terms) discuss or justify the reasons for the more
severe sanction, either collectively for all the offenses or
individually for each of them.
Generally, it merely reinstated the concept of and the
method by which the death penalty had been imposed
until February 2, 1987, when the Constitution took effect
as follows: (1) a person is convicted of a capital offense;
and (2) the commission of which was accompanied by
aggravating circumstances not outweighed by mitigating
circumstances.
The basic question then is: In enacting RA 7659, did
Congress exceed the limited authority granted it by the
Constitution? More legally put: In reviving the death
penalty, did Congress act with grave abuse of discretion
or in excess of the very limited power or jurisdiction
conferred on it by Art. III, Sec. 19? The answer, I
respectfully submit, is YES.
Heinous Crimes
To repeat, while the Constitution limited the power of
Congress to prescribe the death penalty ONLY to
"heinous" crimes, it did not define or characterize the
meaning of "heinous". Neither did Congress. As already
stated, RA 7659 itself merely selected
some existing crimes for which it prescribed death as an
applicable penalty. It did not give a standard or a
characterization by which courts may be able to
appreciate the heinousness of a crime. I concede that
Congress was only too well aware of its constitutionally
limited power. In deference thereto, it included a
paragraph in the preambular or "whereas" clauses of RA
7659, as follows:
WHEREAS, the crimes punishable by
death under this Act are heinous for being
grievous, odious and hateful offenses and
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 ordered society.
In my humble view, however, the foregoing clause is
clearly an insufficient definition or characterization of what
a heinous crime is. It simply and gratuitously declared
certain crimes to be "heinous" without adequately
justifying its bases therefor. It supplies no useful,
workable, clear and unambiguous standard by which the
presence of heinousness can be determined. Calling the
crimes "grievous, odious and hateful" is not a substitute
for an objective juridical definition. Neither is the
description "inherent or manifest wickedness,
viciousness, atrocity and perversity." Describing blood as
blue does not detract from its being crimson in fact; and
renaming gumamela as rose will not arm it with thorns.
Besides, a preamble is really not. an integral part of a law.
It is merely an introduction to show its intent or purposes.
It cannot be the origin of rights and obligations. Where the
meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation,
much less prevail over its text. 15 In this case, it cannot be
the authoritative source to show compliance with the
Constitution.
As already alluded to, RA 7659 merely amended certain
laws to prescribe death as the maximum imposable
penalty once the court appreciates the presence or
absence of aggravating circumstances. 16 There's nothing
really new that Congress did which it could not have
otherwise done had such provision not been included in
our fundamental law.
In other words, it just reinstated capital punishment for
crimes which were already punishable with death prior to
the effectivity of the 1987 Constitution. With the possible
exception of plunder and qualified bribery, 17 no new
crimes were introduced by RA 7659. The offenses
punished by death under said law were already so
punishable by the Revised Penal Code 18 and by special
laws. In short, Sec. 19, Article III of the Constitution did
nor have any impact upon the legislative action. It
was effectively ignored by Congress in enacting the
capital punishment law.
During the debate on Senate Bill No. 891 which later
became RA 7659, Sen. Jose Lina, in answer to a question
of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised
Penal Code, Mr. President, and from
existing special laws which, before
abolition of the death penalty, had already
death as the maximum penalty.
By merely reimposing capital punishment on the very
same crimes which were already penalized with death
prior to the charter's effectivity, Congress I submit has not
fulfilled its specific and positive constitutional duty. If the
Constitutional Commission intended merely to allow
Congress to prescribe death for these very same crimes,
it would not have written Sec. 19 of Article III into the
fundamental law. But the stubborn fact is it did. Verily, the
intention to 1) delete the death penalty from our criminal
laws and 2) make its restoration possible only under and
subject to stringent conditions is evident not only from the
language of the Constitution but also from the charter
debates on this matter.
The critical phrase "unless for compelling reasons
involving heinous crimes" was an amendment introduced
by Comm. Christian Monsod. In explaining what possible
crimes could qualify as heinous, he and Comm. Jose
Suarez agreed on "organized murder" or "brutal murder of
a rape victim". 20 Note that the honorable commissioners
did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the
debates were admittedly rather scanty, I believe that the
available information shows that, when deliberating on
"heinousness", the Constitutional Commission did nor
have in mind the offenses already existing and already
penalized with death. I also believe that the heinousness
clause requires that:
1) the crimes should be entirely new offenses, the
elements of which have an inherent quality, degree or
level of perversity, depravity or viciousness unheard of
until then; or
2) even existing crimes, provided some new element or
essential ingredient like "organized" or "brutal" is added
to show their utter perversity, odiousness or malevolence;
or
3) the means or method by which the crime, whether new
or old, is carried our evinces a degree or magnitude of
extreme violence, evil, cruelty, atrocity, viciousness as to
demonstrate its heinousness. 21
For this purpose, Congress could enact an entirely new
set of circumstances to qualify the crime as "heinous", in
the same manner that the presence of treachery in a
homicide aggravates the crime to murder for which a
heavier penalty is prescribed.
Compelling Reasons
Quite apart from requiring the attendant element of
heinousness, the Constitution also directs Congress to
determine "compelling reasons" for the revival of the
capital penalty. It is true that paragraphs 3 and 4 of the
preamble of RA 7659 22 made some attempt at meeting
this requirement. But such effort was at best feeble and
inconsequential. It should be remembered that every
word or phrase in the Constitution is sacred and should
never be ignored, cavalierly-treated or brushed aside.
Thus, I believe that the compelling reasons and the
characterization of heinousness cannot be done
wholesale but must shown for each and every crime,
individually and separately.
The words "compelling reasons" were included in the
Charter because, in the words of Comm. Monsod, "in the
future, circumstances may arise which we should not
preclude today . . . and that the conditions and the
situation (during the deliberations of the Constitutional
Commission) might change for very specific reasons"
requiring the return of the constitutionally-abhorred
penalty.
In his sponsorship of House Bill No. 62 which later
evolved into RA 7659, Congressman Pablo Garcia, in
answer to questions raised by Representative Edcel
Lagman tried to explain these compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons now,
Mr.
Speaker? . . .
MR. GARCIA (P.) The worsening peace and order
condition in the country, Mr. Speaker. That is one.
MR. LAGMAN. So the compelling reason which the
distinguished sponsor would like to justify or serve as an
anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order
situation. The Gentleman claims that that is one of the
compelling reasons. But before we dissect this particular
"compelling reason," may we know what are the other
compelling reasons, Mr. Speaker?
MR. GARCIA(P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr.
Speaker? Could the Gentleman kindly elaborate on that
answer? Why is justice a compelling reason as if justice
was not obtained at the time the Constitution abolished
the death penalty? Any compelling reason should be a
supervening circumstances after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said
again and again that if one lives in an organized society
governed by law, justice demands that crime be punished
and that the penalty imposed be commensurate with the
offense committed.
MR. LAGMAN. The Gentleman would agree with me that
when the Constitution speaks of the compelling reasons
to justify the reimposition of death penalty, it refers to
reasons which would supervene or come after the
approval of the 1987 Constitution. Is he submitting that
justice, in his own concept of a commensurate penalty for
the offense committed, was not obtained in 1987 when
the Constitution abolished the death penalty and the
people ratified it?
MR. GARCIA (P.). That is precisely why we are saying
that now, under present conditions, because of the
seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be
meted out for those who have committed heinous crimes.
xxx xxx xx
x
In short, Congressman Garcia invoked the preambular
justifications of "worsening peace and order" and
"justice". With all due respect I submit that these grounds
are not "compelling" enough to justify the revival of state-
decreed deaths. In fact, I dare say that these "reasons"
were even non-existent. Statistics from the Philippine
National Police show that the crime volume and crime rate
particularly on those legislated capital offenses did not
worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA
7659 was enacted.
Witness the following debate 24 also between
Representatives Garcia and Lagman:
MR. LAGMAN. Very good, Mr. Speaker.
Now, can we go to 1987. Could the Gentleman from Cebu
inform us the volume of the crime of murder in 1987?
MR. GARCIA (P.). The volume of the crime of murder in
1987 is 12,305.
MR. LAGMAN. So, the corresponding crime rate was 21
percent.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. That was in 1987. Mr. Speaker, could the
distinguished chairman inform us the volume of murder in
1988?
MR. GARCIA (P.). It was 10,521, Mr. Speaker.
MR. LAGMAN. Or it was a reduction from 12.305 in 1987
to 10.521 in 1988.Correspondingly, the crime rate in the
very year after the abolition of the death penalty was
reduced from 21 percent to 18 percent. Is thatcorrect,
Mr. Speaker?
MR. GARCIA (P.). That is correct, Mr. Speaker. Those
are the statistics supplied by the PC.
MR. LAGMAN. Now can we go again to 1987 when the
Constitution abolished the death penalty? May we know
from the distinguished Gentleman the volume of robbery
in 1987?
MR. GARCIA (P.). Will the Gentleman state the figure? I
will confirm it.
MR. LAGMAN. No. Mr. Speaker, I am asking the
question.
MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the
crime rate was 40 percent.
MR. LAGMAN. This was the year immediately after the
abolition of the death penalty. Could the Gentleman tell
us the volume of robbery cases in 1988?
MR. GARCIA (P.). It was 16,926, Mr. Speaker.
MR. LAGMAN. Obviously, the Gentleman would agree
with me, Mr. Speaker that the volume of robbery cases
declined from 22.942 in 1987 or crime rate of 40 percent
to 16.926 or a crime rate of 29 percent. Would the
Gentleman confirm that, Mr. Speaker?
MR. GARCIA (P.). This is what the statistics say. I
understand we are reading now from the same document.
MR. LAGMAN. Now, going to homicide, the volume 1987
was 12,870 or a crime rate of 22 percent. The volume in
1988 was 11,132 or a crime rate of 19 percent. Would the
Gentleman confirm that, Mr. Speaker?
MR. GARCIA(P.). As I Said, Mr. Speaker, we are reading
from the same document and I would not want to say that
the Gentleman is misreading the document that I have
here.
MR. LAGMAN. But would the Gentleman confirm that?
MR. GARCIA (P.). The document speaks for itself".
When interpellated by Sen. Arturo Tolentino, Sen. Jose
Lina gave some figures on the number of persons
arrested in regard to drug-related offenses in the year
1987 as compared to 1991: 25
Let me cite this concrete statistics by the Dangerous Drug
Board.
In 1987 — this was the year when the death penalty was
abolished — the persons arrested in drug-related cases
were 3,062, and the figure dropped to 2,686 in 1988.
By the way, I will furnish my Colleagues with a photo copy
of this report.
From 3,062 in 1987, it dropped to 2,686. Again, it
increased a bit to 2,862 in 1989. It still decreased to 2,202
in 1990, and it increased again to 2,862 in 1991.
But in 1987, when the death penalty was abolished, as far
as the drug-related cases are concerned, the figure
continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.
In a further attempt to show compelling reasons, the
proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against
heinous crimes." 26 However no statistical data, no
sufficient proof, empirical or otherwise, have been
submitted to show with any conclusiveness the
relationship between the prescription of the death penalty
for certain offenses and the commission or non-
commission thereof. This is a theory that can be debated
on and on, 27 in the same manner that another proposition
— that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit
without unnecessary risk, expense and inconvenience to
the victim, his heirs or his witnesses — can be argued
indefinitely, 28 This debate can last till the academics grow
weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within
the "heinousness" and "compelling reasons" limits of its
death-prescribing power.
Other Constitutional Rights
Militate Against RA 7659
It should be emphasized that the constitutional ban
against the death penalty is included in our Bill of Rights.
As such, it should — like any other guarantee in favor of
the accused — be zealously protected, 29 and any
exception thereto meticulously screened. Any doubt
should be resolved in favor of the people, particularly
where the right pertains to persons accused of
crimes. 30 Here the issue is not just crimes — but capital
crimes!
So too, all our previous Constitutions, including the first
one ordained at Malolos, guarantee that "(n)o person
shall be deprived of life, liberty or property without due
process of law." 31 This primary right of the people to enjoy
life — life at its fullest, life in dignity and honor — is not
only reiterated by the 1987 Charter but is in fact fortified
by its other pro- life and pro-human rights provisions.
Hence, the Constitution values the dignity of every human
person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture33 which is
arguably a lesser penalty than death, emphasizes the
individual right to life by giving protection to the life of the
mother and the unborn from the moment of
conception 34 and establishes the people's rights to health,
a balanced ecology and education. 35
This Constitutional explosion of concern for man more
than property, for people more than the stare, and for life
more than mere existence augurs well for the strict
application of the constitutional limits against the revival
of death penalty as the final and irreversible exaction of
society against its perceived enemies.
Indeed, volumes have been written about individual rights
to free speech, assembly and even religion. But the most
basic and most important of these rights is the right to life.
Without life, the other rights cease in their enjoyment,
utility and expression.
This opinion would not be complete without a word on the
wrenching fact that the death penalty militates against the
poor, the powerless and the marginalized. The "Profile of
165 Death Row Convicts" submitted by the Free Legal
Assistance Group 36 highlights this sad fact:
(1) Since the reimposition. of the death penalty, 186
persons 37 have been sentenced to death. At the end of
1994, there were 24 death penalty convicts, at the end of
1995, the number rose to 90; an average of seven (7)
convicts per month, double the monthly average of capital
sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72
an average of 12 convicts per month, almost double the
monthly average of capital sentences imposed in 1995.
(2) Of the 165 convicts polled, approximately twenty one
percent (21%) earn between P200 to P2,900 monthly;
while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above
P4,000 monthly are exceedingly few: seven percent (7%)
earn between P4,000 to P4,999, four percent (4%) earn
between P5,000 to P5,999, seven percent (7%) earn
between P6,000 to P6,999, those earning between
P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%).
Approximately thirteen percent (13%) earn nothing at all,
while approximately two percent (2%) earn subsistence
wages with another five percent (5%) earning variable
income. Approximately nine percent (9%) do not know
how much they earn in a month.
(3) Thus, approximately two-thirds of the convicts, about
112 of them, earn below the government-mandated
minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty
six (26) earn between P4,500.00 and P11,0000.00
monthly, indicating they belong to the middle class; only
one (1) earns P30,000.00 monthly. Nine (9) convicts earn
variable income or earn on a percentage or allowance
basis; fifteen (15) con- victs do not know or are unsure of
their monthly income. Twenty two (22) convicts earn
nothing at all.
(4) In terms of occupation, approximately twenty one
percent (21%) are agricultural workers or workers in
animal husbandry; of these, thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the
transport and construction industry, with thirty one (31)
construction workers or workers in allied fields (carpentry,
painting, welding) while twenty seven (27) are transport
workers (delivery, dispatcher, mechanic, tire man, truck
helper) with sixteen (16) of them drivers. Eighteen percent
(18%) are in clerical, sales and service industries, with
fourteen (14) sales workers (engaged in buy and sell or
fish, cigarette or rice vendors), twelve (12) service
workers (butchers, beauticians, security guards,
shoemakers, tour guides, computer programmers, radio
technicians) and four (4) clerks (janitors, MERALCO
employee and clerk). About four percent (4%) are
government workers, with six (6) persons belonging to the
armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives
comprise only three percent (3%), nine percent (9%) are
unemployed.
(5) None of the DRC's use English as their medium of
communication. About forty four percent (44%), or slightly
less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and
understand Cebuano. The rest speak and understand
Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense
and Waray. One (1) convict is a foreign national and
speaks and understand Niponggo.
(6) Approximately twelve percent (12%) graduated from
college, about forty seven percent (47%) finished varying
levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent
(35%), fifty eight (58) convicts, finished varying levels of
high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational
education; nine (9) convicts did not study at all.
The foregoing profile based on age, language and socio-
economic situations sufficiently demonstrates that RA
7659 has militated against the poor and the powerless in
society — those who cannot afford the legal services
necessary in capital crimes, where extensive preparation,
investigation; research and presentation are required.
The best example to show the sad plight of the
underprivileged is this very case where the crucial issue
of constitutionality was woefully omitted in the
proceedings in the trial court and even before this Court
until the Free Legal Assistance Group belatedly brought it
up in the Supplemental Motion for Reconsideration.
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.
Most assuredly, it may be contended that the foregoing
arguments, and in particular, the statistics above-cited,
are in a very real sense prone to be misleading, and that
regardless of the socio-economic profile of the DRCs, the
law reviving capital punishment does not in any way
single out or discriminate against the poor, the unlettered
or the underprivileged. To put it in another way, as far as
the disadvantaged are concerned, the law would still be
complex and written in a strange and incomprehensible
language, and judicial proceedings complicated and
intimidating, whether the ultimate penalty involved be life
(sentence) or death. Another aspect of the whole
controversy is that, whatever the penalties set by law, it
seems to me that there will always be a certain class or
classes of people in our society who, by reason of their
poverty, lack of educational attainment and employment
opportunities, are consequently confined to living,
working and subsisting in less-than-ideal environments,
amidst less-than- genteel neighbors similarly situated as
themselves, and are therefore inherently more prone to
be involved (as victims or perpetrators) in vices, violence
and crime. So from that perspective, the law reviving the
death penalty neither improves nor worsens their lot
substantially. Or, to be more precise, such law may even
be said to help improve their situation (at least in theory)
by posing a much stronger deterrent to the commission of
heinous crimes.
However, such a viewpoint simply ignores the very basic
differences that exist in the situations of the poor and the
non-poor. Precisely because the
underprivileged are what they are, they require and
deserve a greater degree of protection and assistance
from our laws and Constitution, and from the courts and
the State, so that in spite of themselves, they can be
empowered to rise above themselves and their situation.
The basic postulates for such a position are, I think,
simply that everyone ultimately wants to better himself
and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire
people and nation. All the pro-poor provisions of the
Constitution point in this direction. Yet we are faced with
this law that effectively inflicts the ultimate punishment on
none other than the poor and disadvantaged in the
greater majority of cases, and which penalty, being so
obviously final and so irreversibly permanent, erases all
hope of reform, of change for the better. This law, I
submit, has no place in our legal, judicial and
constitutional firmament .
Epilogue
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 its 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 Stare 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
and 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 reason 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 nor just for all crimes
generally and collectively.
"Thou shall not kill" is a fundamental commandment to all
Christians, as well as to the rest of the "sovereign Filipino
people" who believe in Almighty God. 38 While the Catholic
Church, to which the vast majority of our people belong,
acknowledges the power of public authorities to prescribe
the death penalty, it advisedly limits such prerogative only
to "cases of extreme gravity."39 To quote Pope John Paul
II in his encyclical Evangelium Vitae (A Hymn to
Life),40 "punishment, must be carefully evaluated and
decided upon, and ought not go to the extreme of
executing the offender except in cases of absolute
necessity: in other words, when it would not be possible
otherwise to defend society . . . (which is) very rare, if not
practically non-existent."
Although not absolutely banning it, both the Constitution
and the Church indubitably abhor the death penalty. Both
are pro-people and pro-life. Both clearly recognize the
primacy of human life over and above even the state
which man created precisely to protect, cherish and
defend him. The Constitution reluctantly allows capital
punishment only for "compelling reasons involving
heinous crimes" just as the Church grudgingly permits it
only for reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically
non-existent.
In the face of these evident truisms, I ask: Has Congress,
in enacting RA 7659, amply discharged its constitutional
burden of proving the existence of "compelling reasons"
to prescribe death against well-defined "heinous" crimes?
I respectfully submit it has not.
WHEREFORE, premises considered, I respectfully vote
to grant partially the Supplemental Motion for
Reconsideration and to modify the dispositive portion of
the decision of the trial court by deleting the words
"DEATH, as provided for under RA 7659," and substitute
therefor reclusion perpetua.
I further vote to declare RA 7659 unconstitutional insofar
as it prescribes the penalty of death for the crimes
mentioned in its text.
Separate Opinions
SEPARATE OPINION
Time has transformed man into a highly intellectual and
civilized, as well as, I wish to believe, a humane and
compassionate, being. The ancient edict of "an eye for an
eye, a tooth for a tooth" has since been abandoned by a
society that recognizes the good in every man and gives
a transgressor an opportunity to reform. Somehow,
however, certain vestiges of savage retribution still
remain; indeed, the taking of a human life continues, at
least in some penal systems, to be an acceptable
punishment.
In this country, the issue of whether or not the State
should impose the death penalty has recently been
resolved with the ratification, on 02 February 1987, of the
Constitution by 76.29% of the electorate. Section 19,
Article III, thereof, states:
Sec. 19. (1) Excessive fines shall not be
imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death
penalty be imposed, unless, for
compelling reasons involving heinous
crimes, the Congress hereafter provides
for it. Any death penalty already imposed
shall be reduced to reclusion perpetua.
Ours is a rule of law. The Supreme Court is not a political
entity; it can merely apply and interpret the law. It cannot.
and it will not, spare itself from this constitutionally-
mandated duty. Death penalty cases are not excepted. In
the discharge of its grave responsibility, nevertheless, the
Court must act with greatest caution and strictest
circumspection for there can be no stake that can be
higher, and no penalty that can be graver, than the
extinction by the State of human life.
The determination of when to prescribe the death penalty
now lies with the sound discretion of the law-making
authority, the Congress of the Philippines, subject to the
conditions that the fundamental law has set forth; viz:
(1) That there must be compelling reasons to justify the
imposition of the death penalty; and
(2) That the capital offense must involve a heinous crime.
It appears to me that the Constitution did not
contemplate a simple "reimposition" of the death
penalty to offenses theretofore already provided
in the Revised Penal Code or just because of it.
The term "compelling reasons" should be enough to
indicate that there must be a marked change in the milieu
from that which has prevailed at the time of adoption of
the 1987 Constitution, on the one hand, to that which
exists at the enactment of the statute prescribing the
death penalty, upon the other hand, that would make it
distinctively inexorable to mandate the death penalty.
That milieu must have turned from bad to worse.
Most importantly, the circumstances that would
characterize the "heinous nature" of the crime and make
it so exceptionally offensive as to warrant the death
penalty must be spelled out with great clarity in the law.
To venture, in the case of murder, the crime could
become "heinous" within the Constitutional concept
when, to exemplify, the victim is unnecessarily subjected
to a painful-and excruciating death, or in the crime of rape
when the offended party is callously humiliated or even
brutally killed by the accused.
I submit that, given the circumstances and the law before
us, the Constitutional fiat (now being raised for the first
time in the instant Motion for Reconsideration) in the
imposition of the death penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty
of reclusion perpetua (the next lower penalty than death).
SEPARATE OPINION
Death Penalty Law Unconstitutional
In his Supplemental Motion for Reconsideration1 dated
August 22, 1996 filed by his newly-retained counsel,2 the
accused raises for the first time a very crucial ground for
his defense: that Republic Act No. 7659, the law
reimposing the death penalty, is unconstitutional. In the
Brief and (original) Motion for Reconsideration filed by his
previous counsel,3 this transcendental issue was not
brought up. Hence, it was not passed upon by this Court
in its Decision affirming the trial court's sentence of death.4
The Constitution Abolished Death Penalty
Section 19, Article III of the 1987 Constitution provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless for compelling
reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall
be reduced to reclusion perpetua. (Emphasis supplied)
The second and third sentences of the above provision
are new and had nor been written in the 1935, 1973 or
even in the 1986 "Freedom Constitution." They proscribe
the imposition5 of the death penalty "unless for compelling
reasons involving heinous crimes, Congress provides for
it," and reduced "any death penalty already imposed"
to reclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of the
penalty) and a retroactive one (it reduces imposed capital
sentence to the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the
Constitution did not merely suspend the imposition of the
death penalty, but in fact completely abolished it from the
statute books. The automatic commutation or reduction
to reclusion perpetua of any death penalty extant as of
the effectivity of the Constitution clearly recognizes that,
while the conviction of an accused for a capital crime
remains, death as penalty ceased to exist in our penal
laws and thus may no longer be carried out. This is the
clear intent of the framers of our Constitution. As Comm.
Bernas exclaimed,6 "(t)he majority voted for the
constitutional abolition of the death penalty."
Citing this and other similar pronouncements of the
distinguished Concom delegate, Mme. Justice Ameurfina
Melencio-Herrera emphasized,7 "It is thus clear that when
Fr. Bernas sponsored the provision regarding the non-
imposition of the death penalty, what he had in mind was
the total abolition and removal from the statute books of
the death penalty. This became the intent of the framers
of the Constitution when they approved the provision and
made it a part of the Bill of Rights." With such abolition as
a premise, restoration thereof becomes an exception to a
constitutional mandate. Being an exception and thus in
derogation of the Constitution, it must then be strictly
construed against the State and liber- ally in favor of the
people.8 In this light, RA 7659 enjoys no presumption of
constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1) effectively
removed the death penalty from the then existing statutes
but (2) authorized Congress to restore it at some future
time to enable or empower courts to reimpose it on
condition that it (Congress)9 finds "compelling reasons,
involving heinous crimes." The language of the
Constitution is emphatic (even if "awkward" 10): the
authority of Congress to "provide for it" is not absolute.
Rather, it is strictly limited:
(1) by "compelling reasons" that may arise after the
Constitution became effective; and
(2) to crimes which Congress should identify or define or
characterize as "heinous."
The Constitution inexorably placed upon Congress the
burden of determining the existence of "compelling
reasons and of defining what crimes are "heinous" before
it could exercise its law-making prerogative to restore the
death penalty. For clarity's sake, may I emphasize that
Congress, by law, prescribes the death penalty an certain
crimes: and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt
of committing said crimes.
In the exercise of this fundamental mandate, Congress
enacted RA 7659 11 to "Provide for it" (the death penalty)
(1) by amending certain provisions of the Revised Penal
Code; 12 (2) by incorporating a new article therein; 13 and
(3) by amending certain special laws. 14
But RA 7659 did not change the nature or the elements of
the crimes stated in the Penal Code and in the special
laws. It merely made the penalty more severe. Neither did
its provisions (other than the preamble, which was cast in
general terms) discuss or justify the reasons for the more
severe sanction, either collectively for all the offenses or
individually for each of them.
Generally, it merely reinstated the concept of and the
method by which the death penalty had been imposed
until February 2, 1987, when the Constitution took effect
as follows: (1) a person is convicted of a capital offense;
and (2) the commission of which was accompanied by
aggravating circumstances not outweighed by mitigating
circumstances.
The basic question then is: In enacting RA 7659, did
Congress exceed the limited authority granted it by the
Constitution? More legally put: In reviving the death
penalty, did Congress act with grave abuse of discretion
or in excess of the very limited power or jurisdiction
conferred on it by Art. III, Sec. 19? The answer, I
respectfully submit, is YES.
Heinous Crimes
To repeat, while the Constitution limited the power of
Congress to prescribe the death penalty ONLY to
"heinous" crimes, it did not define or characterize the
meaning of "heinous". Neither did Congress. As already
stated, RA 7659 itself merely selected
some existing crimes for which it prescribed death as an
applicable penalty. It did not give a standard or a
characterization by which courts may be able to
appreciate the heinousness of a crime. I concede that
Congress was only too well aware of its constitutionally
limited power. In deference thereto, it included a
paragraph in the preambular or "whereas" clauses of RA
7659, as follows:
WHEREAS, the crimes punishable by death under this
Act are heinous for being grievous, odious and hateful
offenses and 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
ordered society.
In my humble view, however, the foregoing clause is
clearly an insufficient definition or characterization of what
a heinous crime is. It simply and gratuitously declared
certain crimes to be "heinous" without adequately
justifying its bases therefor. It supplies no useful,
workable, clear and unambiguous standard by which the
presence of heinousness can be determined. Calling the
crimes "grievous, odious and hateful" is not a substitute
for an objective juridical definition. Neither is the
description "inherent or manifest wickedness,
viciousness, atrocity and perversity." Describing blood as
blue does not detract from its being crimson in fact; and
renaming gumamela as rose will not arm it with thorns.
Besides, a preamble is really not. an integral part of a law.
It is merely an introduction to show its intent or purposes.
It cannot be the origin of rights and obligations. Where the
meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation,
much less prevail over its text. 15 In this case, it cannot be
the authoritative source to show compliance with the
Constitution.
As already alluded to, RA 7659 merely amended certain
laws to prescribe death as the maximum imposable
penalty once the court appreciates the presence or
absence of aggravating circumstances. 16 There's nothing
really new that Congress did which it could not have
otherwise done had such provision not been included in
our fundamental law.
In other words, it just reinstated capital punishment for
crimes which were already punishable with death prior to
the effectivity of the 1987 Constitution. With the possible
exception of plunder and qualified bribery, 17 no new
crimes were introduced by RA 7659. The offenses
punished by death under said law were already so
punishable by the Revised Penal Code 18 and by special
laws. In short, Sec. 19, Article III of the Constitution did
nor have any impact upon the legislative action. It
was effectively ignored by Congress in enacting the
capital punishment law.
During the debate on Senate Bill No. 891 which later
became RA 7659, Sen. Jose Lina, in answer to a question
of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code,
Mr. President, and from existing special laws which,
before abolition of the death penalty, had already death
as the maximum penalty.
By merely reimposing capital punishment on the very
same crimes which were already penalized with death
prior to the charter's effectivity, Congress I submit has not
fulfilled its specific and positive constitutional duty. If the
Constitutional Commission intended merely to allow
Congress to prescribe death for these very same crimes,
it would not have written Sec. 19 of Article III into the
fundamental law. But the stubborn fact is it did. Verily, the
intention to 1) delete the death penalty from our criminal
laws and 2) make its restoration possible only under and
subject to stringent conditions is evident not only from the
language of the Constitution but also from the charter
debates on this matter.
The critical phrase "unless for compelling reasons
involving heinous crimes" was an amendment introduced
by Comm. Christian Monsod. In explaining what possible
crimes could qualify as heinous, he and Comm. Jose
Suarez agreed on "organized murder" or "brutal murder of
a rape victim". 20 Note that the honorable commissioners
did not just say "murder" but organized murder; not
just rape but brutal murder of a rape victim. While the
debates were admittedly rather scanty, I believe that the
available information shows that, when deliberating on
"heinousness", the Constitutional Commission did nor
have in mind the offenses already existing and already
penalized with death. I also believe that the heinousness
clause requires that:
1) the crimes should be entirely new offenses, the
elements of which have an inherent quality, degree or
level of perversity, depravity or viciousness unheard of
until then; or
2) even existing crimes, provided some new element or
essential ingredient like "organized" or "brutal" is added
to show their utter perversity, odiousness or malevolence;
or
3) the means or method by which the crime, whether new
or old, is carried our evinces a degree or magnitude of
extreme violence, evil, cruelty, atrocity, viciousness as to
demonstrate its heinousness. 21
For this purpose, Congress could enact an entirely new
set of circumstances to qualify the crime as "heinous", in
the same manner that the presence of treachery in a
homicide aggravates the crime to murder for which a
heavier penalty is prescribed.
Compelling Reasons
Quite apart from requiring the attendant element of
heinousness, the Constitution also directs Congress to
determine "compelling reasons" for the revival of the
capital penalty. It is true that paragraphs 3 and 4 of the
preamble of RA 7659 22 made some attempt at meeting
this requirement. But such effort was at best feeble and
inconsequential. It should be remembered that every
word or phrase in the Constitution is sacred and should
never be ignored, cavalierly-treated or brushed aside.
Thus, I believe that the compelling reasons and the
characterization of heinousness cannot be done
wholesale but must shown for each and every crime,
individually and separately.
The words "compelling reasons" were included in the
Charter because, in the words of Comm. Monsod, "in the
future, circumstances may arise which we should not
preclude today . . . and that the conditions and the
situation (during the deliberations of the Constitutional
Commission) might change for very specific reasons"
requiring the return of the constitutionally-abhorred
penalty.
In his sponsorship of House Bill No. 62 which later
evolved into RA 7659, Congressman Pablo Garcia, in
answer to questions raised by Representative Edcel
Lagman tried to explain these compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons now,
Mr.
Speaker? . . .
MR. GARCIA (P.) The worsening peace and order
condition in the country, Mr. Speaker. That is one.
MR. LAGMAN. So the compelling reason which the
distinguished sponsor would like to justify or serve as an
anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order
situation. The Gentleman claims that that is one of the
compelling reasons. But before we dissect this particular
"compelling reason," may we know what are the other
compelling reasons, Mr. Speaker?
MR. GARCIA(P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr.
Speaker? Could the Gentleman kindly elaborate on that
answer? Why is justice a compelling reason as if justice
was not obtained at the time the Constitution abolished
the death penalty? Any compelling reason should be a
supervening circumstances after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said
again and again that if one lives in an organized society
governed by law, justice demands that crime be punished
and that the penalty imposed be commensurate with the
offense committed.
MR. LAGMAN. The Gentleman would agree with me that
when the Constitution speaks of the compelling reasons
to justify the reimposition of death penalty, it refers to
reasons which would supervene or come after the
approval of the 1987 Constitution. Is he submitting that
justice, in his own concept of a commensurate penalty for
the offense committed, was not obtained in 1987 when
the Constitution abolished the death penalty and the
people ratified it?
MR. GARCIA (P.). That is precisely why we are saying
that now, under present conditions, because of the
seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be
meted out for those who have committed heinous crimes.
In short, Congressman Garcia invoked the preambular
justifications of "worsening peace and order" and
"justice". With all due respect I submit that these grounds
are not "compelling" enough to justify the revival of state-
decreed deaths. In fact, I dare say that these "reasons"
were even non-existent. Statistics from the Philippine
National Police show that the crime volume and crime rate
particularly on those legislated capital offenses did not
worsen but in fact declined between 1987, the date when
the Constitution took effect, and 1993, the year when RA
7659 was enacted.
Witness the following debate 24 also between
Representatives Garcia and Lagman:
MR. LAGMAN. Very good, Mr. Speaker.
Now, can we go to 1987. Could the Gentleman from Cebu
inform us the volume of the crime of murder in 1987?
MR. GARCIA (P.). The volume of the crime of murder in
1987 is 12,305.
MR. LAGMAN. So, the corresponding crime rate was 21
percent.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. That was in 1987. Mr. Speaker, could the
distinguished chairman inform us the volume of murder in
1988?
MR. GARCIA (P.). It was 10,521, Mr. Speaker.
MR. LAGMAN. Or it was a reduction from 12.305 in 1987
to 10.521 in 1988.Correspondingly, the crime rate in the
very year after the abolition of the death penalty was
reduced from 21 percent to 18 percent. Is that correct,
Mr. Speaker?
MR. GARCIA (P.). That is correct, Mr. Speaker. Those
are the statistics supplied by the PC.
MR. LAGMAN. Now can we go again to 1987 when the
Constitution abolished the death penalty? May we know
from the distinguished Gentleman the volume of robbery
in 1987?
MR. GARCIA (P.). Will the Gentleman state the figure? I
will confirm it.
MR. LAGMAN. No. Mr. Speaker, I am asking the
question.
MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the
crime rate was 40 percent.
MR. LAGMAN. This was the year immediately after the
abolition of the death penalty. Could the Gentleman tell
us the volume of robbery cases in 1988?
MR. GARCIA (P.). It was 16,926, Mr. Speaker.
MR. LAGMAN. Obviously, the Gentleman would agree
with me, Mr. Speaker that the volume of robbery cases
declined from 22.942 in 1987 or crime rate of 40 percent
to 16.926 or a crime rate of 29 percent. Would the
Gentleman confirm that, Mr. Speaker?
MR. GARCIA (P.). This is what the statistics say. I
understand we are reading now from the same document.
MR. LAGMAN. Now, going to homicide, the volume 1987
was 12,870 or a crime rate of 22 percent. The volume in
1988 was 11,132 or a crime rate of 19 percent. Would the
Gentleman confirm that, Mr. Speaker?
MR. GARCIA(P.). As I Said, Mr. Speaker, we are reading
from the same document and I would not want to say that
the Gentleman is misreading the document that I have
here.
MR. LAGMAN. But would the Gentleman confirm that?
MR. GARCIA (P.). The document speaks for itself".
When interpellated by Sen. Arturo Tolentino, Sen. Jose
Lina gave some figures on the number of persons
arrested in regard to drug-related offenses in the year
1987 as compared to 1991: 25
Let me cite this concrete statistics by the Dangerous Drug
Board.
In 1987 — this was the year when the death penalty was
abolished — the persons arrested in drug-related cases
were 3,062, and the figure dropped to 2,686 in 1988.
By the way, I will furnish my Colleagues
with a photo copy of this report.
From 3,062 in 1987, it dropped to 2,686.
Again, it increased a bit to 2,862 in 1989.
It still decreased to 2,202 in 1990, and it
increased again to 2,862 in 1991.
But in 1987, when the death penalty was
abolished, as far as the drug-related
cases are concerned, the figure continued
a downward trend, and there was no
death penalty in this time from, 1988 to
1991.
In a further attempt to show compelling reasons, the
proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against
heinous crimes." 26 However no statistical data, no
sufficient proof, empirical or otherwise, have been
submitted to show with any conclusiveness the
relationship between the prescription of the death penalty
for certain offenses and the commission or non-
commission thereof. This is a theory that can be debated
on and on, 27 in the same manner that another proposition
— that the real deterrent to crime is the certainty of
immediate arrest, prosecution and conviction of the culprit
without unnecessary risk, expense and inconvenience to
the victim, his heirs or his witnesses — can be argued
indefinitely, 28 This debate can last till the academics grow
weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within
the "heinousness" and "compelling reasons" limits of its
death-prescribing power.
Other Constitutional Rights
Militate Against RA 7659
It should be emphasized that the constitutional ban
against the death penalty is included in our Bill of Rights.
As such, it should — like any other guarantee in favor of
the accused — be zealously protected, 29 and any
exception thereto meticulously screened. Any doubt
should be resolved in favor of the people, particularly
where the right pertains to persons accused of
crimes. 30 Here the issue is not just crimes — but capital
crimes!
So too, all our previous Constitutions, including the first
one ordained at Malolos, guarantee that "(n)o person
shall be deprived of life, liberty or property without due
process of law." 31 This primary right of the people to enjoy
life — life at its fullest, life in dignity and honor — is not
only reiterated by the 1987 Charter but is in fact fortified
by its other pro- life and pro-human rights provisions.
Hence, the Constitution values the dignity of every human
person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture33 which is
arguably a lesser penalty than death, emphasizes the
individual right to life by giving protection to the life of the
mother and the unborn from the moment of
conception 34 and establishes the people's rights to health,
a balanced ecology and education. 35
This Constitutional explosion of concern for man more
than property, for people more than the stare, and for life
more than mere existence augurs well for the strict
application of the constitutional limits against the revival
of death penalty as the final and irreversible exaction of
society against its perceived enemies.
Indeed, volumes have been written about individual rights
to free speech, assembly and even religion. But the most
basic and most important of these rights is the right to life.
Without life, the other rights cease in their enjoyment,
utility and expression.
This opinion would not be complete without a word on the
wrenching fact that the death penalty militates against the
poor, the powerless and the marginalized. The "Profile of
165 Death Row Convicts" submitted by the Free Legal
Assistance Group 36 highlights this sad fact:
(1) Since the reimposition. of the death penalty, 186
persons 37 have been sentenced to death. At the end of
1994, there were 24 death penalty convicts, at the end of
1995, the number rose to 90; an average of seven (7)
convicts per month, double the monthly average of capital
sentences imposed the prior year. From January to June
1996, the number of death penalty convicts reached 72
an average of 12 convicts per month, almost double the
monthly average of capital sentences imposed in 1995.
(2) Of the 165 convicts polled, approximately twenty one
percent (21%) earn between P200 to P2,900 monthly;
while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above
P4,000 monthly are exceedingly few: seven percent (7%)
earn between P4,000 to P4,999, four percent (4%) earn
between P5,000 to P5,999, seven percent (7%) earn
between P6,000 to P6,999, those earning between
P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%).
Approximately thirteen percent (13%) earn nothing at all,
while approximately two percent (2%) earn subsistence
wages with another five percent (5%) earning variable
income. Approximately nine percent (9%) do not know
how much they earn in a month.
(3) Thus, approximately two-thirds of the convicts, about
112 of them, earn below the government-mandated
minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty
six (26) earn between P4,500.00 and P11,0000.00
monthly, indicating they belong to the middle class; only
one (1) earns P30,000.00 monthly. Nine (9) convicts earn
variable income or earn on a percentage or allowance
basis; fifteen (15) con- victs do not know or are unsure of
their monthly income. Twenty two (22) convicts earn
nothing at all.
(4) In terms of occupation, approximately twenty one
percent (21%) are agricultural workers or workers in
animal husbandry; of these, thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the
transport and construction industry, with thirty one (31)
construction workers or workers in allied fields (carpentry,
painting, welding) while twenty seven (27) are transport
workers (delivery, dispatcher, mechanic, tire man, truck
helper) with sixteen (16) of them drivers. Eighteen percent
(18%) are in clerical, sales and service industries, with
fourteen (14) sales workers (engaged in buy and sell or
fish, cigarette or rice vendors), twelve (12) service
workers (butchers, beauticians, security guards,
shoemakers, tour guides, computer programmers, radio
technicians) and four (4) clerks (janitors, MERALCO
employee and clerk). About four percent (4%) are
government workers, with six (6) persons belonging to the
armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives
comprise only three percent (3%), nine percent (9%) are
unemployed.
(5) None of the DRC's use English as their medium of
communication. About forty four percent (44%), or slightly
less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and
understand Cebuano. The rest speak and understand
Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense
and Waray. One (1) convict is a foreign national and
speaks and understand Niponggo.
(6) Approximately twelve percent (12%) graduated from
college, about forty seven percent (47%) finished varying
levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent
(35%), fifty eight (58) convicts, finished varying levels of
high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational
education; nine (9) convicts did not study at all.
The foregoing profile based on age, language and socio-
economic situations sufficiently demonstrates that RA
7659 has militated against the poor and the powerless in
society — those who cannot afford the legal services
necessary in capital crimes, where extensive preparation,
investigation; research and presentation are required.
The best example to show the sad plight of the
underprivileged is this very case where the crucial issue
of constitutionality was woefully omitted in the
proceedings in the trial court and even before this Court
until the Free Legal Assistance Group belatedly brought it
up in the Supplemental Motion for Reconsideration.
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.
Most assuredly, it may be contended that the foregoing
arguments, and in particular, the statistics above-cited,
are in a very real sense prone to be misleading, and that
regardless of the socio-economic profile of the DRCs, the
law reviving capital punishment does not in any way
single out or discriminate against the poor, the unlettered
or the underprivileged. To put it in another way, as far as
the disadvantaged are concerned, the law would still be
complex and written in a strange and incomprehensible
language, and judicial proceedings complicated and
intimidating, whether the ultimate penalty involved be life
(sentence) or death. Another aspect of the whole
controversy is that, whatever the penalties set by law, it
seems to me that there will always be a certain class or
classes of people in our society who, by reason of their
poverty, lack of educational attainment and employment
opportunities, are consequently confined to living,
working and subsisting in less-than-ideal environments,
amidst less-than- genteel neighbors similarly situated as
themselves, and are therefore inherently more prone to
be involved (as victims or perpetrators) in vices, violence
and crime. So from that perspective, the law reviving the
death penalty neither improves nor worsens their lot
substantially. Or, to be more precise, such law may even
be said to help improve their situation (at least in theory)
by posing a much stronger deterrent to the commission of
heinous crimes.
However, such a viewpoint simply ignores the very basic
differences that exist in the situations of the poor and the
non-poor. Precisely because the
underprivileged are what they are, they require and
deserve a greater degree of protection and assistance
from our laws and Constitution, and from the courts and
the State, so that in spite of themselves, they can be
empowered to rise above themselves and their situation.
The basic postulates for such a position are, I think,
simply that everyone ultimately wants to better himself
and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire
people and nation. All the pro-poor provisions of the
Constitution point in this direction. Yet we are faced with
this law that effectively inflicts the ultimate punishment on
none other than the poor and disadvantaged in the
greater majority of cases, and which penalty, being so
obviously final and so irreversibly permanent, erases all
hope of reform, of change for the better. This law, I
submit, has no place in our legal, judicial and
constitutional firmament .
Epilogue
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 its 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 Stare 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
and 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 reason 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 nor just for all crimes I further vote to declare RA 7659 unconstitutional insofar
generally and collectively. as it prescribes the penalty of death for the crimes
mentioned in its text.
"Thou shall not kill" is a fundamental commandment to all
Christians, as well as to the rest of the "sovereign Filipino Footnotes
people" who believe in Almighty God. 38 While the Catholic
Church, to which the vast majority of our people belong,
acknowledges the power of public authorities to prescribe
the death penalty, it advisedly limits such prerogative only
to "cases of extreme gravity."39 To quote Pope John Paul
II in his encyclical Evangelium Vitae (A Hymn to
Life),40 "punishment, must be carefully evaluated and
decided upon, and ought not go to the extreme of
executing the offender except in cases of absolute
necessity: in other words, when it would not be possible
otherwise to defend society . . . (which is) very rare, if not
practically non-existent."

Although not absolutely banning it, both the Constitution

and the Church indubitably abhor the death penalty. Both
are pro-people and pro-life. Both clearly recognize the
primacy of human life over and above even the state
which man created precisely to protect, cherish and
defend him. The Constitution reluctantly allows capital
punishment only for "compelling reasons involving
heinous crimes" just as the Church grudgingly permits it
only for reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically
non-existent.

In the face of these evident truisms, I ask: Has Congress,

in enacting RA 7659, amply discharged its constitutional
burden of proving the existence of "compelling reasons"
to prescribe death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, premises considered, I respectfully vote

to grant partially the Supplemental Motion for
Reconsideration and to modify the dispositive portion of
the decision of the trial court by deleting the words
"DEATH, as provided for under RA 7659," and substitute
therefor reclusion perpetua.