(Speech delivered by Rep. Edcel C. Lagman on 07 February 2017 during the Plenary Session of the House of Representatives)
Mr. Speaker, the burden to indubitably show the urgency and necessity to reimpose the death penalty is on the proponents of House Bill 4727, which seeks to revive capital punishment because the state of the law since 2006 is that the death penalty has been abolished by RA No. 9346 of which I was the principal author and sponsor. The oppositors respectfully and diligently present the overview of the major grounds why the death penalty should not be reinstalled.
While no time is right and ripe for pushing for the reimposition of the death penalty, now is the worst of times to enact the revival of capital punishment when scalawag cops are the very felons, and rogues in robes preside over the life or death of citizens.
In an unprecedented move, President Rodrigo Duterte has ordered the crackdown on errant police elements and the dismantling of anti-narcotics groups, including Oplan “Tokhang”, in the wake of the police murder of a Korean businessman, not to mention the over 7,000 victims of extrajudicial killings.
On the other hand, no less than Supreme Court Chief Justice Lourdes Sereno has revealed very recently that between 2012 to 2016, 16 judges and one Sandiganbayan justice were dismissed for acts unbecoming of officers in the judiciary. She added that in the same period the Supreme Court suspended 14 judges, fined 101, reprimanded 21 and admonished 31.
The High Court also dismissed 116 court employees, admonished 42, forfeited benefits of 31, censured 3, fined 240, reprimanded 221, and suspended 227 since 2010.
Justice is not only delayed but also wantonly waylaid, due to the flawed, inept and corrupt police, prosecutorial and judicial systems, the very pillars of our judicial system.
We must put the death penalty bill irretrievably in the backburner and address and implement with dispatch much delayed reforms in the police and justice systems. No less than Committee on Justice Chair Reynaldo Umali advocated the same pressing reforms in his sponsorship speech.
It will not make the revival of the death penalty less retrogressive and repugnant to the inviolability of life if it is imposed solely on drug-related offenses. In fact, the Philippines is a State Party to the 1988 UN Drug Convention which prescribes only imprisonment, not death, to drug-related offenses.
Capital punishment must not be revived for any crime for the following overriding reasons:
1. The reimposition of the death penalty will not solve criminality, including the drug menace. Solving the incidence of crime is a multi-dimensional process which ranges from sustained poverty alleviation to much-needed police, prosecutorial and judicial reforms. The severest penalty is not the antidote to criminality.
2. Pronounced social injustice, crippling poverty and utter absence of quality of life among the disadvantaged and marginalized sectors are among the root causes of criminality. The data are irrefutable that it is in the poorest of regions and countries where the incidence of criminality is highest. We should address with utmost priority the critical causes of criminality, not only its manifestation.
3. The death penalty desecrates the right to life, which is sacrosanct and inviolable, and it is an affront to human dignity. Pope Francis instructs in his message to the 6th World Congress Against the Death Penalty in Oslo, Norway last year in 2016 that the “inviolability of life extends to the criminal.” No amount of out-of-context invocation of the Bible will diminish the Pope’s steadfast opposition to the death penalty. More than anybody else, Pope Francis is the final authority on the interpretation of the Bible. In this case, we cannot literally be more popish than the pope.
It is for this reason that bereaved families of countless victims of so-called “heinous” crimes do not wish death to the perpetrators. The families of victims of enforced disappearance or desaparecidos, like my own family, who lost a member, Atty. Hermon Lagman, a labor and human rights lawyer, to involuntary disappearance committed by military elements of martial law. My family and I also do not want death for the assassins of my brother, Filemon “Ka Popoy” Lagman who was gunned down in the UP Campus 16 years ago on February 6, 2001. There are many more likeminded families who want genuine justice, not short-lived retribution.
4. Empirical data from the Philippines and worldwide document that the death penalty through the years has not been an effective deterrent to crime. What deters the commission of crimes are certainty of apprehension, speedy prosecution, and warranted conviction.
5. The death penalty exacerbates the culture of violence and its revival adds State-sanctioned killings to the unabated extrajudicial killings related to the deadly campaign against the drug menace.
6. The death penalty cannot be prioritized over the long-delayed reforms in our flawed police, prosecutorial and judicial systems, which make genuine justice illusory to the majority of our people. The infirmities in our pillars of justice do not only delay, but also worse, waylay justice.
7. The death penalty further marginalizes and victimizes the poor who can neither retain competent counsel nor influence court processes. The unassailable data is that the poor overly populate death rows worldwide. This is the same data in the New Bilibid Prison’s death row before the death penalty was abolished in 2006 by R.A. No. 9346.
8. Capital punishment enforces punitive and retributive justice instead of promoting the modern concept of penology on restorative justice, which aims to reform the convict and prepare his reintegration into society. Pope Francis again extolled that “There is no fitting punishment without hope. Punishment for its own sake, without room for hope, is a form of torture, not punishment.” Hence, the death penalty which forecloses reformation of the convict, must not be imposed because according to Pope Francis, “it does not render justice to the victims, but instead fosters vengeance.” Vengeance is not justice.
9. The revival of the death penalty utterly fails to consider that human justice is fallible and even the innocent can be executed. The Supreme Court has repeatedly enjoined that “Courts should be guided by the principle that it would be better to set free ten men who might be probably guilty of the crime charged than to convict one innocent man for a crime he did not commit.” The records show that countless persons are sentenced to death for crimes they have not committed.
The fact that many death sentences are reversed anyway upon automatic review by the Supreme Court is not a proper argument for the reimposition of the death penalty. It overlooks the irreparable trauma of a convict and his family while awaiting the final decision on his death sentence. In fact, Commissioner Joaquin Bernas during the Constitutional Commission deliberations clearly stated that “… capital punishment is inhuman for the convict and his family who are traumatized by the waiting, even if it is never carried out.”
10. The 1987 Constitution does not prescribe the death penalty. On the contrary, it abolished the death penalty, although the Congress is allowed to reimpose it for compelling reasons on heinous crimes. The Congress has no plenary power to restore the death penalty. Its limited power is circumscribed by the Constitution which requires two overriding conditions: (a) compelling reasons and (b) heinous crimes.
Section 9 (1) of Article III of the Constitution on the Bill of Rights provides that “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 “heinousness” of a crime is not determinative of the compelling reasons for reimposing the death penalty. They are not synonymous. Heinousness is not a compelling reason. Congress must show and prove separately the determinant factors of “heinousness” and “compelling reasons”.
Isolated and sporadic sensational or sensationalized crimes like “chop-chop”, placing the victim inside a barrel, and inordinate cruelty inflicted on the victims are not compelling reasons to reimpose the death penalty. The isolated occurrence of one or two of these “once in a blue moon” crimes do not constitute a compelling reason to reinstall capital punishment as required by the Constitution.
Calls for the death penalty after the random commission of such so-called “heinous” crimes are mere knee-jerk reactions from the mob.
Moreover, the perpetrators of occasional sensational crimes are blinded by spontaneous fury due to supervening temporary derangement of the mind. While they should be imprisoned, they need professional psychiatric help, not execution.
11. However, as a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the Second Optional Protocol to the ICCPR, the Philippines is committed to abolish the death penalty and not to reimpose it.
The Philippine ratified the ICCPR in 1986 before the 1987 Constitution abolished the death penalty; and the Second Optional Protocol in 2007, after the abolition of the death penalty under RA No. 9346.
Perforce, by our treaty commitments, the Philippines has abandoned the option to revive the death penalty. These treaty obligations, as accepted principles of international law, form part of Philippine law, primarily of the Constitution. International conventions and jurisprudence provide that a country cannot assert its domestic law or constitution to negate or violate its treaty obligations.
International jurisprudence mandates that as “an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligations. Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.”
This is the same well-anchored opinion advocated by the late Senator Jovito Salonga together with the late Former Chief Justice Pedro Yap in their book “Public International Law”.
Moreover, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Convention in 1949 provides: “Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.”
Equally important is Article 26 of the Convention which provides that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” This is known as the principle of facta sunt servanda which preserves the sanctity of treaties and has been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.
It is on record that no State Party to the Second Optional Protocol to the ICCPR has reimposed the death penalty in its jurisdiction. The Philippines may be lamentably and dishonorably be the unfortunate first.
12. There are serious economic repercussions if the Philippines reimposes the death penalty as we would lose free tariff privileges on our exports to European Union countries which require adherence to human rights. We will forfeit tariff privileges for 6,274 products under the Generalized System of Preferences or GSP+. Moreover, a reimposition of the death penalty will compound human rights violations due to rampant extrajudicial killings, which the European Union has already protested.
13. With the revival of the death penalty, the Philippines would lose moral ascendancy in negotiating for the lifting of the death sentences on Filipino OFWs numbering over 70 worldwide. Because of President Duterte’s position to reimpose the death penalty, the Philippine government was unable to strongly plea to save the life of Jakatia Pawa, a death convict in Kuwait who maintained her innocence to her last breath.
14. The irreversible trend is the diminishing number of countries imposing the death penalty. Out of 195 countries documented by the UN, only 37 retain the death penalty in both law and in practice. Only four countries – China, Iran, Pakistan and Saudi Arabia – account for 90% of executions.
15. If the death penalty is reimposed, the Philippines will lose its pre-eminent leadership in the ASEAN and in the Asian Region in the crusade for the promotion of human rights. The Philippines was the first Asian country to abolish the death penalty.
Members of ASEAN Parliamentarians for Human Rights (APHR) urged President Duterte and Philippine legislators to immediately desist in their pursuit of a reinstatement of the death penalty, calling on them to respect the Philippines’ international obligations and avoid undermining the country’s much-respected role as a regional leader on human rights protection.
The APHR underscored that “… it would be an incredible setback to our collective struggle if the Philippines were to take the dramatic step backward of reinstating the death penalty. The move would not only indicate a rejection of hard-fought progress, but would cause other ASEAN nations to question the Philippines’ commitment to the full gamut of international treaties it has signed”, the APHR stressed.
The authors of H.B. No. 4727 have not shown indubitable compelling reasons for the reimposition of the death penalty, compliant with the Constitution. The alleged rising criminality cannot be a compelling reason for the reimposition of the death penalty for two cardinal reasons:
(a) Granting that there is an increase in the incidence of crime, such increase has different socio-economic causes, not the mere propensity of people to commit crimes. These major causes cannot be addressed and arrested by just imposing the death penalty; and
(b) The claim of increasing crime rate is not true. No less than the Philippine National Police (PNP) has recently documented that the incidence of crime has gone down, except for murder due to the rampant extrajudicial killings committed by the police themselves and their vigilante cohorts.
In fact, there can be no compelling reason at all to abrogate the right to life.
In a survey released only on 31 January 2017, the SWS has reported that the number of Filipinos who have been victims of crime in the last six months fell to record lows with only 4.5% of the respondents claiming that they have fallen prey to street robbery, carjacking and break-ins compared to 5.5% in March and June 2015 and 6.4% in September 2016.
We must consign to the past the trio of instruments of death: lethal injection, hanging and firing squad. The first is a modern method of execution which has failed in several instances to administer a painless and instant death, while the later two are vestiges of archaic apparatuses of death.
We must, perforce reject House Bill No. 4727, and put to death an unwarranted exercise of reviving the death penalty. We must save from the death penalty the lives of common as well as admirable citizens like Socrates, Jesus Christ and own national hero Jose Rizal who were all innocent of the crimes for which they were charged, but were sacrificed to state-sanctioned violence and vengeance.
It would be good to keep in mind a Chinese proverb which reminds us that he who seeks vengeance must dig two graves – one for his enemy and one for himself. Because justice is not vengeance and vengeance is not justice.