Abolish the Death Penalty

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Abolish the Death Penalty*

by

Hon. Artemio V. Panganiban

Chief Justice of the Philippines

Magandang hapon po sa inyong lahat . I have spok en and written many times

on matters related to the death penalty, but today marks the first time I shall

talk about it as Chief Justice of the Philippines.

Fe licitations to FLAG, th e

Au thors , and th e N e th e rlands

* Address delivered by Chief Justice Artemio V . Panganiban during the launching of Le gal R efe r e nc e on Capital Cas e s , the latest publication of the Free Legal Assistance Group (FL AG), on May 31, 2006,4:00 p.m., at the lobby of Malcolm Hall, University of the Philippines, Diliman, Quezon City .



Let me begin by publicly cong ratulating the Free Legal Assistance

Group (FL AG) f or its insistent, persistent and consistent stand against the

death penalty . May I ack now ledge that the arg uments presented and the

brief s filed by FL AG have pro v ok ed much of the animated deliberations of

the Supreme Court, w hile it w as in the process of ruling on the

constitutionality of the Death Penalty La w .1[1] I cannot g o into details,

because internal deliberations of the Court are confidential. Permit me to

say, how ever, that my Dissenting Opinions on this subject reflect many of

the persuasive and passionate arg uments put f orth by FL AG.

W hile there w ere originally f our dissenters to the constitutionality of the

death penalty la w, now I am sorry to say that two of them have retired and

only two -- including me -- remain in the Court. The ne w justices appointed

since 1997 have f ollow ed the majority vie w that the la w is constitutional.

Nonetheless, I urge you to continue your persevering adv ocacy to obliterate

the capital penalty f rom our statute books and f rom the annals of our history .

1[1] The issue of the constitutionality of the Death Penalty La w (R epublic Act No. 7659) w as belatedly raised in Leo Echegaray·s Supplemental Motion f or R econsideration, w hich w as filed by his then ne w ly retained counsel, the FL AG. The issue w as resolved on February 7, 1997. (267 SCR A 682,February 7, 1997)



Indeed, FL AG is undoubtedly the Philippines· leading la w g roup in ´No

Death Penaltyµ adv ocacy . It has been tirelessly campaigning to abolish the

death penalty not only through litigation, but also via legislation and public

a w areness activities.

FL AG has f ulfilled, and continues to f ulfill, its self -imposed mandate by

(1) pro viding f ree legal ser vices in capital cases, especially to death row

convicts; (2) conducting training workshops f or attorneys handling capital

cases; (3) inspiring young la wy ers to become v olunteers and pro viding similar

f ree legal ser vices to death row convicts; and (4) lobby ing f or the abolition of

the Death Penalty La w . It has also been work ing relentlessly at changing

public opinion and perception about the death penalty through inf ormation

dissemination and researches.

Aside f rom citing FL AG as an organization, may I also especially

commend Attys. Theodore O. Te, R icardo A. Sunga III, Glenda B. Litong

and Gilda E. Guillermo, w ho are the authors of Le gal R efe r e nc e . Judging f rom

this f our- v olume easy-to-read reference g uide, I am persuaded that the

authors have painstak ingly pored o ver the decisions of the Supreme Court on

capital offenses, in order to consolidate the doctrines expounded.



These books contain an authoritative discussion of the f our major

crimes in w hich the death penalty is imposed: rape, murder and parricide,

k idnapping , and drug -related cases. They also pro vide a check list of legal

req uirements, as w ell as the q uality and q uantity of proof f or the mandatory

imposition of the death sentence.

More important, they identif y, clarif y and sy nthesize the ruling s of the

Supreme Court in death penalty cases f rom the time the Death Penalty La w

w as appro ved. Indeed, as a dissenter in some of these Decisions, I can truly

say that Le gal R efe r e nc e captures the Court·s vie ws and positions on the

imposition of the capital penalty . Conseq uently, the compendium is a very

helpf ul tool not only f or la w students, la w professors, practicing la wy ers and

sitting magistrates, but also f or lay persons.

So too, the Roy al Netherlands Embassy, w hich has given financial

assistance to the publication, deser ves appreciation. For some time now, the

g o vernment of the Netherlands has been assisting the Philippines through

projects ranging f rom po verty alleviation, to biodiversity conser vation, and to

the streng thening of Philippine institutions of higher education. Now comes



this generous contribution to the legal profession. S alamat po, Your

Excellency, Ambassador Robert A. Vornis.

TRO to S top th e

Exe c u tion o f Ech e garay

In 7 of the 10 books I have thus far written, I have dedicated a

chapter2[2] on capital offenses to express my repetitive dissent to the death

penalty la w . As you all must k now, I am jurisprudentially and philosophically

opposed to death.

In Le ad e rship by Ex ampl e , I recalled that on January 4, 1999, the Supreme

Court issued a Temporary R estraining Order (TRO) postponing the

execution of Leo Echegaray, w ho w as scheduled to be executed at 3:00 p.m.

on that very day . The TRO w as promulgated upon motion of Atty .

Theodore O. Te of FL AG. He arg ued that several bills had been filed in

2[2] B A TTLES IN THE SUPREME COURT, Chapter 4 (1998); LE ADERSHIP BY EX AMPLE,Chapter 6 (1999); TR ANSP ARENC Y, UN ANIMITY AND DIVERSITY, Chapter 16 (2000); A CENTEN ARY OF JUSTICE, Chapter 14 (2001); REFORMING THE JUDICI ARY, Chapter 22(2002); THE BIO- AGE D A WNS ON THE JUDICI ARY, Chapter 14 (2003); and LEVELING

THE PL A YING FIELD, Chapter 21 (2004).



Cong ress to repeal the Death Penalty La w, and that a treaty abolishing the

capital penalty w as ´headed f orµ ratification in the Senate.

Almost the entire Philippine officialdom -- f rom the President to the

senators, cong ressmen, and even municipal councilors -- reacted sw if tly and

f uriously . During instantly organized street rallies and demonstrations, ly nch

mobs and anti-crime crusaders demanded the resignation or the

impeachment of the eight justices w ho had v oted f or the TRO. These

members of the high court w ere attack ed as incompetent, pow er-hung ry, and

insensitive to public opinion. Additionally, the magistrates and their families

w ere threatened, insulted and booed.

To be sure, I w as targeted f or the most virulent of the criticisms,

because in Battl e s in th e S u pr e m e Cou rt -- a book I had written the y ear bef ore --

I had publicly opposed the death penalty . E ven my daughters w ere not

spared. Because of hate calls and bodily threats, I had to pro vide them w ith

extra security . But no matter, my opposition to the death penalty remained

unshak en.3[3]

3[3] It seems the adv ocates of the death penalty are as active as ever. R ecently, during an ´ambushµmedia inter vie w in Bag uio City, I reiterated my opinion that the Death Penalty La w w asunconstitutional. Immediately, I w as attack ed violently f or ´prejudging µ the matter. Only af ter I



I nt e rnational Tr e nd

to Abolish th e De ath P e nalty

I also mentioned in my books that the international trend is

unmistak ably tow ards the abolition of legalized k illing . Article 1 of the

Second Optional Protocol to the International Co venant on Civil and

Political R ights states that ´[ n ]o one w ithin the jurisdiction of a State party to

the present protocol shall be executed.µ The United Nations has adopted

this Optional Protocol as early as December 15, 1989.4[4] W hile the

explained in a letter to The Philippine Star columnist Max Soliven that I w as merely reiterating an

old vie w did the tirades stop. My letter w as reproduced in f ull by Mr. Soliven in his column on April 27, 2006, as f ollows:

³Dear Max,

Re: your column today, may I clarify that I did not say anything new onthe death penalty. When asked by media (³ambushed´ is probably moreaccurate) here in Baguio, I replied that I maintain my opinion given in 1997 inPeople v. Echegaray , that the death penalty law is unconstitutional. However,I added that the majority has ruled it to be constitutional. Thus, even if I amnow Chief Justice, I still follow the majority ruling that the law is constitutional.

And the only way to change the law is through congressional amendment or repeal.

Max, I just repeated an old view given in an old 1997 case. I was notspeaking out of turn or prejudging a new controversy. I was just beingconsistent.´

4[4] My Dissent in Ech e garay v. S e cr e tary o f J u stic e , 297 SCR A 754, 807-808, October 12, 1998.



Philippines -- together w ith 58 other states -- v oted in fav or of the

adoption of this Protocol, it has not ratified it.5[5]

More and more states are joining the mo vement tow ards the

preser vation of life. On March 1, 2005, a closely divided US Supreme Court

reversed an earlier ruling and abolished the death penalty f or ju veniles.6[6]

R ely ing on the pro visions of the 8th Amendment against ´cruel and unusual

punishment,µ the US Court cited the o verw helming w eight of international

opinion as a partial basis f or the ruling . Indeed, the number of Americans

endorsing the death penalty has beg un to decrease, even if -- sad to say --

w ell o ver 60 percent still support it to this day .

The mo vement f or the abolition of capital punishment began in the

18th century in some countries, lik e V enezuela (1863), San Marino (1865),

and Costa R ica (1877). The death penalty w as abolished in Great Britain

( except f or cases of treason ) in 1971; France, in 1981; and Canada, in 1976.

In 1977, the United Nations General Assembly resolved to ask its members

5[5] Supra.

6[6] Rope r , S u pe rint e nd e nt , Potosi Corr e ctional C e nt e r v . S immons , No. 03-633, March 1, 2005, per K ennedy, J.



throughout the world to ´prog ressively restrict the number of offenses f or

w hich the death penalty might be imposed, w ith a vie w to the desirability of

abolishing this punishment.µ7[7] Since 2000, Chile, Yug oslavia, Serbia,

Monteneg ro and Turk ey have joined the list of abolitionist countries.

Already, o ver half of the countries in the world have abolished the death

penalty either by la w or through practice.

Th e Harshn e ss o f th e

De ath P e nalty on th e Poor

In P e opl e v. Ech e garay ,8[8] the Supreme Court -- by a v ote of 12 to 3 --

upheld the constitutionality of the death penalty prescribed by R epublic Act

(R A ) 7659. In my Dissent, though, I pointedly lamented the failure of

Cong ress to satisf y the constitutional req uirements of ´heinousnessµ and

´compelling reasons.µ More than that, I w as deeply concerned that the death

penalty would be especially harsh on the poor. Thus, I arg ued:

7[7] <http://www . ne wsbatch.com/deathpenalty .htm.

8[8] 267 SCR A 682, February 7, 1997.



To the poor and unlettered, it is bad enough that the law iscomplex and written in a strange, incomprehensible language.Worse still, judicial proceedings are themselves complicated,

intimidating and damning. The net effect of having a deathpenalty that is imposed more often than not upon theimpecunious is to engender in the minds of the latter a sense ±unfounded, to be sure, but unhealthy nevertheless ± of theunequal balance of the scales of justice.9[9]

9[9] In closing , my Dissents summed up the arg uments against the constitutionality of R A 7659 thus:

³In sum, I respectfully submit that:

³(1) The 1987 Constitution abolished the death penalty from our statutebooks. It did not merely suspend or prohibit is imposition.

³(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(3) Any law reviving the capital penalty must be strictly construed against the

State and liberally in favor of the accused, because such a statutedenigrates the Constitution, impinges on a basic right and tends to denyequal justice to the underprivileged.

³(4) Every word or phrase in the Constitution is sacred and should never beignored, cavalierly treated or brushed aside.

³(5) Congressional power to prescribe death is severely limited by twoconcurrent requirements:

(a) First, Congress [must] provide a set of attendant circumstances whichthe prosecution must prove beyond reasonable doubt, apart from theelements of the crime itself. Congress must explain why and how thesecircumstances define or characterize the crime as ³heinous.´

(b) Second, Congress has also the duty of laying out clear and specificreasons which arose after the effectivity of the Constitution compellingthe enactment of the law. It bears repeating that these requirements areinseparable. They must both be present in view of the specificconstitutional mandate ± ³for compelling reasons involving heinouscrimes.´ The compelling reasons must flow from the heinous nature of the offense.

³(6) In every law reviving the capital penalty, the heinousness and compellingreasons must be set out for each and every crime, and not just for allcrimes generally and collectively. ́



Erron e ou s Exe c u tion

o f Le o Ech e garay

I maintain my vie w that the death penalty has no place in our legal

firmament. Indeed, in spite of the meticulous scrutiny that the Supreme

Court gives to death cases, it is still possible that an innocent person would

be held legally g uilty and thereaf ter judicially executed.10[10] As humans are

imperfect, judges can mak e wrongf ul evaluations. A perfectly innocent

individual could die due to human error, not to mention the g uile and deceit

that could accompany trials. Once carried out, the death sentence can no

longer be reversed or modified.

This opinion is not a mere sterile speculation. It is real. To

demonstrate this point, let me g o back to Ech e garay ,11[11] in w hich -- to

repeat -- the first death sentence w as affirmed by the Supreme Court af ter

R epublic Act No. 7659 had tak en effect.

10[10] Furthermore, the continuance of death penalty collides w ith the global crusade to abolish it. Thisfact is show n in five major international treatises: ( a ) the 1948 Universal Declaration of Human R ights; (b) the 1966 International Co venant on Economic, Social and Cultural R ights; ( c ) the 1966International Co venant on Civil and Political R ights (ICCPR) and ( d ) the two Optional Protocolsto the ICCPR . All these treatises are collectively referred to as the International Bill of Human R ights.

11[11] Supra.



In this case, the Inf ormation alleged that the victim w as the daughter of

the accused, Leo Echegaray .12[12] It w as pro ven during the trial, how ever,

that he w as not á father, stepfather or g randfatherµ of the victim. The

Court nonetheless affirmed his death sentence.

To stress, the Inf ormation alleged that Leo, the offender, w as the father

of the victim. This q ualif y ing circumstance of father-daughter relationship

w as not pro ven, how ever. W hat w as pro ven w as that Leo w as the

ćonfirmed lo verµ of the victim·s mother.

W hile R epublic Act No

.7659

prescribes the capital punishment f or rape perpetrated by the ćommon la w

spouse of the parent of the victim,µ13[13] such q ualif y ing circumstance w as

not alleged in the Inf ormation or Complaint.

12[12] The Inf ormation reads as f ollows:

³The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE,committed as follows:

³That on or about the month of April 1994, in Quezon City, Philippines, the above-named accused, by means of force and intimidation, did then and there willfully,unlawfully and feloniously have carnal knowledge of the undersigned complainant, hisdaughter, a minor, 10 years of age, all against her will and without her consent, to her damage and prejudice.

³CONTRARY TO LAW.´

13[13] S ee R epublic Act No. 7659, Sec. 11.



As explained in your Le gal R efe r e nc e on Capital Cas e s , Volume I (on R ape ),

p. 62, ´there is need to allege [ q ualif y ing circumstances] in any inf ormation

that charges rape[;] otherw ise these circumstances w ill not be considered as

q ualif y ing ,µ and the penalty cannot be death. More specifically, f ollow ing the

doctrine laid dow n in P e opl e v. Gallo,14[14] P e opl e v. Dimapilis ,15[15] P e opl e v.

Manggasin 16[16] and P e opl e v. Ponado,17[17] Echegaray·s penalty should have

been reduced to r e cl u sion pe rpe t u a . In Gallo, the Court belatedly reduced the

penalty to r e cl u sion pe rpe t u a , even though the Decision meting out death had

already become final.

But the case of Echegaray is different. He is now in the Great Beyond,

and a correction of the judicial error can no longer resurrect him. I believe

that the surreal outcome of this case reinf orces the strongest reason w hy the

death penalty has no place in our statute books. Af ter the execution of the

appellant, errors in its imposition become nightmarishly irreversible.

Certainly, human reversals cannot affect the g ravey ard.

14[14] 315 SCR A 461, September 29, 1999, per curiam.

15[15] 300 SCR A 279, December 17, 1998, per V itug , J .

16[16] 306 SCR A 228, April 21, 1999, per Mendoza, J.

17[17] 311 SCR A 528, July 28, 1999, per V itug , J.



Those opposing the death penalty can tak e small comf ort that only

seven convicts18[18] have been actually k illed by lethal injection. Since

President Joseph Estrada·s declaration of an 11-month moratorium19[19] on

executions, in deference to the Catholic Church·s Jubilee Y ear in 2000, no

convict w as put to death f or the rest of the y ear. This no-execution policy

w as continued by the ne w administration of President Gloria Macapagal

Arroyo.

The seeming reluctance of the Executive Department to implement the

Death Penalty La w f ully is encouraging , to say the least. R ecently, at a f orum

of the Foreign Correspondents Association of the Philippines, President

Arroyo categ orically stated that she w as in fav or of abolishing capital

punishment. She promised to push f or the immediate passage of legislation

to repeal or modif y the Death Penalty La w .20[20]

S tring e nt R e vi ew

18[18] Leo Echegaray f or rape on February 5, 1999; Eduardo Ag bay ani f or rape on June 25, 1999; Dante

Piandiong , Jesus Morallos and Archie Bulan f or robbery w ith homicide on July 8, 1999; Pablito Andan f or rape w ith homicide on October 26, 1999; and Alex Bartolome f or rape on January 4,2000.

19[19] President Estrada declared a moratorium on the executions of all convicts w hose capital sentenceshad been affirmed by the Supreme Court. This declaration w as reported by the ne ws dailies on March 25, 2000.

20[20] Philippine Daily Inq uirer, February 22, 2006, p. 2.



o f De ath Cas e s

As many of you must k now, the Supreme Court respects the right and

the pow er of the President to revie w death penalties imposed by final

judg ments, as w ell as to exercise her pardoning pow er accordingly . That is

w hy in every Decision in w hich the penalty of death is imposed, a standard

clause in the dispositive portion is included. The clause orders the

f orw arding of the records of the death case to the Office of the President f or

a possible exercise of the pardoning pow er. This Court w ill continue to

include that clause f or as long as the death penalty has not been abolished.

There is another consolation f or anti-death adv ocates. E ven if a

majority of my colleag ues maintain that the Death Penalty La w is

constitutional, they nonetheless revie w death cases w ith painstak ing care.

Since the reimposition of the death penalty in 1993 until June 8, 2004,21[21]

almost 65 (to be exact, 64.61) percent of the sentences originally imposing

death on the accused w ere modified. The modifications came in the f orm of

either a remand f or f urther proceeding s, or a reduction of the sentence to

r e cl u sion pe rpe t u a or other low er penalties.

21[21] Data supplied by the Supreme Court Judicial Records Office.



Significantly, the low ering of the penalty w as ordered in 483 cases

(53.25 percent). Only in 230 of the 907 cases (or



25.36 percent) revie w ed w as the death sentence affirmed.22[22]

Furthermore, upon automatic revie w, the Court acq uitted 65 of those

sentenced to death.

In sum, the cases in w hich the judg ment of death has been either

modified or vacated consist of an astounding 74.64 percent of the total of

death penalty cases elevated directly to the Supreme Court on automatic

revie w . That percentage translates to a total of 651 out of 907 appellants

saved f rom lethal injection.

I nt e rm e diat e L ay e r o f R e vi ew

22[22] The pertinent statistics are as f ollows:

DISMISSED due to death

of the accused-appellants 26

AFFIRMED 230

MODIFIED:

a. Further proceedings 31

b. R eclusion perpetua 483

c. Indeterminate sentence 72

ACQUITTED 65

²²²

907



f or Error- F r ee J u dgm e nt

W hile the percentage of death affirmation stood at a little o ver 25

percent, and w hile the Court has been meticulous in its ow n revie w, it took

another extra precaution in July 2004 w hen it promulgated P e opl e v.

Mat e o.23[23] In that case, the high court deemed it w ise and compelling to

pro vide an intermediate lay er of revie w by the Court of Appeals ( C A ), bef ore

cases could be elevated to the Supreme Court f or final judg ment. Moreo ver,

only death affirmations by the C A are now subjected to automatic

revie w .24[24]

S e parat e Vot e s

on Gu ilt and P e nalty

I must add another change introduced in revie ws of death cases. The

Supreme Court now v otes separately (1) on

23[23] GR Nos. 147678-87, July 7, 2004, per V itug , J.

24[24] Consistent w ith Mat e o, the Court amended Secs. 3 and 10 of Rule 122, as w ell as Secs. 12 and 13 of Rule 124, of the R evised Rules of Criminal Procedure in AM No. 00-5-03-SC, promulgated on September 28, 2004.



the g uilt of the accused and (2) on the penalty to be imposed.25[25]

Through this two-tier v oting process, the Court hopes and endeav ors to

ensure, as much as possible, that the ´possibility of compassionate or

mitigating factors stemming f rom the f railties of man are tak en into account

and all persons convicted of a designated offense treated as uniq uely

individual human being s, not as members of a faceless, undifferentiated mass

to be subjected to the blind infliction of the penalty of death.µ

Conclusion

I close this address w ith another round of cong ratulations f or FL AG.

May you continue to be ever vigilant in your defense of death convicts and in

your adv ocacy of the elimination of the capital penalty f rom our statutes.

May you succeed in your legal defense and public adv ocacy, even if I may

have failed in my ow n eff orts to persuade my colleag ues to excise this

abominable punishment f rom Philippine jurisprudence.

Maraming salamat po.

25[25] P e opl e v. P u razo, GR No. 133189, May 5, 2003, per Bellosillo, J .; P e opl e v. Roq ue , GR Nos. 130659and 144002, Aug ust 14, 2002, per V itug

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