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LEO ECHEGARAY,
                Petitioner,

"(1) The Decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive authority. The issuance of the TRO may be construed as trenching on that sphere of executive authority;

(2) The issuance of the temporary restraining order x x x creates dangerous precedent as there will never be an end to litigation because there is always a possibility that Congress may repeal a law.

(3) Congress had earlier deliberated extensively on the death penalty bill. To be certain, whatever question may now be raised on the Death Penalty Law before the present Congress within the 6-month period given by this Honorable Court had in all probability been fully debated upon x x x.

(4) Under the time honored maxim lex futuro, judex praeterito, the law looks forward while the judge looks at the past, x x x the Honorable Court in issuing the TRO has transcended its power of judicial review.

(5) At this moment, certain circumstances/supervening events transpired to the effect that the repeal or modification of the law imposing death penalty has become nil, to wit:
 

a. The public pronouncement of President Estrada that he will veto any law imposing the death penalty involving heinous crimes.
 
b. The resolution of Congressman Golez, et al., that they are against the repeal of the law;   c. The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel."

In their Consolidated Comment, petitioner contends: (1) the stay order x x x is within the scope of judicial power and duty and does not trench on executive powers nor on congressional prerogatives; (2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not lose jurisdiction to address incidental matters involved or arising from the petition; (4) public respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that the law on capital punishment will not be repealed or modified until Congress convenes and considers all the various resolutions and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601, where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999 merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to intervene in the case at bar, let alone the fact that the interest of the State is properly represented by the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.
 

First. We do not agree with the sweeping submission of the public respondents that this Court lost its jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner. Obviously, public respondents are invoking the rule that final judgments can no longer be altered in accord with the principle that "it is just as important that there should be a place to end as there should be a place to begin litigation."[1] To start with, the Court is not changing even a comma of its final Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this case, viz:
 

"This is to certify that on October 12, 1998 a decision rendered in the above-entitled case was filed in this Office, the dispositive part of which reads as follows:

"the finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of the judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Even after the judgment has become final the court retains its jurisdiction to execute and enforce it.[3]  There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend, modify or alter the same. The former continues even after the judgment has become final for the purpose of enforcement of judgment; the latter terminates when the judgment becomes final.[4] x x x For after the judgment has become final facts and circumstances may transpire which can render the execution unjust or impossible.[5]

"This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court cannot change or alter its judgment, as its jurisdiction has terminated.  When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the Executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out of the penalty and to pardon.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution[7] vests the entirety of judicial power in one Supreme Court and in such lower courts as may be estabished by law. To be sure, the most important part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change the circumstance of the parties and compel courts to intervene and adjust the rights of the litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts have been conceded the inherent and necessary power of control of its processes and orders to make them conformable to law and justice.[8] For this purpose, Section 6 of Rule 135 provides that "when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own Decision to give it reasonble time to check its fairness in light of supervening events in Congress as alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law enacted by Congress.

The more disquieting dimension of the submission of the public respondents that this Court has no jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the judiciary. Since the implant of republicanism in our soil, our courts have been conceded the jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court promulgated rules concerning pleading, practice and procedure which, among others, spelled out the rules on execution of judgments. These rules are all predicated on the assumption that courts have the inherent, necessary and incidental power to control and supervise the process of execution of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases. Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance its independence, for in the words of Justice Isagani Cruz "without independence and integrity, courts will lose that popular trust so essential to the maintenance of their vigor as champions of justice."[9]Hence, our Constitutions continuously vested this power to this Court for it enhances its independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII provides:

"Sec. 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice and procedure, and the admission to the practice of law in the Philippines."

The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973 Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and procedure in all courts, x x x which, however, may be repealed, altered or supplemented by the Batasang Pambansa x x x." More completely, Section 5(2)5 of its Article X provided:

x x x

"Sec. 5. The Supreme Court shall have the following powers.

x x x

(5) Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repealed, altered, or supplemented by the Batasang Pambansa. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights."

Well worth noting is that the 1973 Constitution further strengthened the independence of the judiciary by giving to it the additional power to promulgate rules governing the integration of the Bar.[13]

x x x

"Section 5. The Supreme Court shall have the following powers:

x x x

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court."

To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to control and supervise the implementation of its decision in the case at bar. As aforestated, our Decision became final and executory on November 6, 1998. The records reveal that after November 6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him "x x x a certified true copy of the Warrant of Execution dated November 17, 1998 bearing the designated execution day of death convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the execution date fixed by such trial court to the public when requested." The relevant portions of the Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide the appropriate relief" state:

x x x

5. Instead of filing a comment on Judge Ponferrada's Manifestation however, herein respondent is submitting the instant Manifestation and Motion (a) to stress, inter alia, that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his statutory powers, as well as renders nugatory the constitutional guarantee that recognizes the people's right to information of public concern, and (b) to ask this Honorable Court to provide the appropriate relief.

6. The non-disclosure of the date of execution deprives herein respondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section 39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations to Implement Republic Act No. 8177 is concerned and for the discharge of the mandate of seeing to it that laws and rules relative to the execution of sentence are faithfully observed.

7. On the other hand, the willful omission to reveal the information about the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (Executive Department) of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code, as amended, which provides that the death sentence shall be carried out `without prejudice to the exercise by the President of his executive clemency powers at all times." (Underscoring supplied) For instance, the President cannot grant reprieve, i.e., postpone the execution of a sentence to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon with. The exercise of such clemency power, at this time, might even work to the prejudice of the convict and defeat the purpose of the Constitution and the applicable statute as when the date of execution set by the President would be earlier than that designated by the court.

8. Moreover, the deliberate non-disclosure of information about the date of execution to herein respondent and the public violates Section 7, Article III (Bill of Rights) and Section 28, Article II (Declaration of Principles and State Policies) of the 1987 Philippine Constitution which read:
 

SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

SEC. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
 

9. The `right to information' provision is self-executing. It supplies 'the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the Constitution without need for any ancillary act of the Legislature (Id., at p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III, Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter." (Decision of the Supreme Court En Banc in Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987]."

Second. We likewise reject the public respondents' contention that the "decision in this case having become final and executory, its execution enters the exclusive ambit of authority of the executive department x x x. By granting the TRO, the Honorable Court has in effect granted reprieve which is an executive function."[14] Public respondents cite as their authority for this proposition, Section 19, Article VII of the Constitution which reads:

"Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures after conviction by final judgment. He shall also have the power to grant amnesty with the concurrence of a majority of all the members of the Congress."

Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its proper perspective as it has been grievously distorted especially by those who make a living by vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4, the first working day of 1999; (b) that members of Congress had either sought for his executive clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of the death penalty law; (b.3) Senator Raul Roco has also sought the repeal of capital punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding review of the same law.

When the Very Urgent Motion was filed, the Court was already in its traditional recess and would only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on January 4, 1999[17] at 10. a.m. to deliberate on petitioner's Very Urgent Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at 3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new members whose views on capital punishment are still unexpressed. The present Congress is therefore different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And verification from Congress was impossible as Congress was not in session. Given these constraints, the Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certain that no repeal or modification of the law is going to be made." The extreme caution taken by the Court was compelled, among others, by the fear that any error of the Court in not stopping the execution of the petitioner will preclude any further relief for all rights stop at the graveyard. As life was at stake, the Court refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed the certainty that the legislature will not change the circumstance of petitioner as alleged by his counsel. It was believed that law and equitable considerations demand no less before allowing the State to take the life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization of the issue whether Congress is disposed to review capital punishment. The public respondents, thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that Congress will repeal or amend the death penalty law. He names these supervening events as follows:

x x x

"a. The public pronouncement of President Estrada that he will veto any law repealing the death penalty involving heinous crimes.

b. The resolution of Congressman Golez, et al., that they are against the repeal of the law;

c. The fact that Senator Roco's resolution to repeal the law only bears his signature and that of Senator Pimentel."[18]

A last note. In 1922, the famous Clarence Darrow predicted that "x x x the question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment."[19] In our clime and time when heinous crimes continue to be unchecked, the debate on the legal and moral predicates of capital punishment has been regrettably blurred by emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan reminds us "x x x it is the very purpose of the Constitution - - - and particularly the Bill of Rights to declare certain values transcendent, beyond the reach of temporary political majorities."[20] Man has yet to invent a better hatchery of justice than the Court. It is a hatchery where justice will bloom only when we can prevent the roots of reason from being blown away by the winds of rage. The flame of the rule of law cannot be ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who is momentarily the most hated by society.[21]

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining Order issued in its Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima, and Pardo, JJ., concur.

Panganiban and Vitug, JJ., See separate opinion.

Buena and Gonzaga-Reyes, JJ., no part.

Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during its current session which ends on June 15, 1999 and that, in any event, the President will veto any such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my objections to the imposition of the death penalty transcend the TRO and permeate its juridical essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and "compelling reasons" prescribed by the Constitution of the Philippines.[*] This I have repeatedly stated in my Dissenting Opinions in various death cases decided by the Court, as well as during the Court’s deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of my Dissent promulgated on February 7, 1997.

Consequently, I cannot now vote to lift the TRO, because to do so would mean the upholding and enforcement of a law (or the relevant portions thereof) which, I submit with all due respect, is unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in which RA 7659 (the Death Penalty Law) is to be implemented.

Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the Court that both RA 7659 and RA 8177 are constitutional and that the death penalty should, by majority vote, be implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the Solicitor General’s Motion for Reconsideration.

In his Supplemental Motion for Reconsideration[1] 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]
 

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." (Underscoring supplied)

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 a 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 liberally in favor of the people.[8] In this light, R.A. 7659 enjoys no presumption of constitutionality.
 

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 re-impose 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:

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 R.A. 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 R.A. 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.
 

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."

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 not 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."

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 not have in mind the offenses already existing and already penalized with death. I also believe that the heinousness clause requires that:

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 R.A. 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 x x x 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 R.A. 7659, Congressman Pablo Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these compelling reasons:[23]

Witness the following debate[24] also between Representatives Garcia and Lagman:

"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.
 

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 torture[33] 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 state, 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 P11,000.00 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) convicts 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."

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 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 powered 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.
 

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 State 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 not 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] Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life),."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 x x x (which is) very rare, if not practically non-existent."[40]

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.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a temporary restraining order ("TRO") because, among other things, of what had been stated to be indications that Congress would re-examine the death penalty law. It was principally out of respect and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.

The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment convicting the accused or recall the imposition of the death penalty.

The doctrine has almost invariably been that after a decision becomes final and executory, nothing else is further done except to see to its compliance since for the Court to adopt otherwise would be to put no end to litigations. The rule notwithstanding, the Court retains control over the case until the full satisfaction of the final judgment conformably with established legal processes. Hence, the Court has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend the execution of a final judgment when it becomes imperative in the higher interest of justice or when supervening events warrant it.[1] Certainly, this extraordinary relief cannot be denied any man, whatever might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs. Judge of First Instance of Cavite,[2] should be instructive. Thus:

"This Supreme Court has repeatedly declared in various decisions, which constitute jurisprudence on the subject, that in criminal cases, after the sentence has been pronounced and the period for reopening the same has elapsed, the court can not change or alter its judgment, as its jurisdiction has terminated, functus est officio suo, according to the classical phrase. When in cases of appeal or review the cause has been returned thereto for execution, in the event that the judgment has been affirmed, it performs a ministerial duty in issuing the proper order. But it does not follow from this cessation of functions on the part of the court with reference to the ending of the cause that the judicial authority terminates by having then passed completely to the executive. The particulars of the execution itself, which are certainly not always included in the judgment and writ of execution, in any event are absolutely under the control of the judicial authority, while the executive has no power over the person of the convict except to provide for carrying out the penalty and to pardon.
 
"Getting down to the solution of the question I the case at bar, which is that of execution of a capital sentence, it must be accepted as a hypothesis that postponement of the date can be requested. There can be no dispute on this point. It is a well-known principle that, notwithstanding the order of execution and the executory nature thereof on the date set or at the proper time, the date therefor can be postponed, even in sentences of death. Under the common law this postponement can be ordered in three ways: (1) By command of the King: (2) by discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state this principle of the common law to render impossible the assertion in absolute terms that after the convict has once been placed in jail the trial court can not reopen the case to investigate the facts that show the need for postponement. If one of the ways is by direction of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the general rule that after the Court of First Instance has performed its ministerial duty of ordering the execution, functus est officio suo, and its part is ended, if however a circumstances that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement. x x x."

The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999, "coeval with the duration of the present regular session of Congress," if it "sooner becomes certain that no repeal or modification of the law is going to be made." The "Urgent Motion for Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain circumstances/supervening events (have) transpired to the effect that the repeal or modification of the law imposing death penalty has become nil x x x." If, indeed, it would be futile to yet expect any chance for a timely[3] re-examination by Congress of the death penalty law, then I can appreciate why the majority of the Justices on the Court feel rightly bound even now to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for the need to have a second look at the conditions sine qua non prescribed by the Constitution in the imposition of the death penalty. In People vs. Masalihit,[4] in urging, with all due respect, Congress to consider a prompt re-examination of the death penalty law, I have said:

"The determination of when to prescribe the death penalty lies, in the initial instance, with the law-making authority, the Congress of the Philippines, subject to the conditions that the Constitution itself 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 that the fundamental law did not contemplate a simple ‘reimposition’ of the death penalty to offenses therefore already provided in the Revised Penal Code or, let alone, just because of it. The term ‘compelling reasons’ would indicate to that there must first 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 allow the re-imposition of the death penalty. 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, albeit without necessarily precluding the Court from exercising its power of judicial review given the circumstances of each case. To venture, in the case of murder, the crime would 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. The indiscriminate imposition of the death penalty could somehow constrain courts to apply, perhaps without consciously meaning to, stringent standards for conviction, not too unlikely beyond what might normally be required in criminal cases, that can, in fact, result in undue exculpation of offenders to the great prejudice of victims and society."

ACCORDINGLY, I vote against the lifting of the restraining order of the Court even as I, like everyone else, however, must respect and be held bound by the ruling of the majority.
 
 
 
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Endnotes:

[1]  Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104 (1938).
[2]  Philippine Courts and their Jurisdiction, p. 13, 1998 ed.
[3]  Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230; American Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71 SCRA 426; Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and Industrial Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712; Mindanao Portland Cement Corp. v. Laquihan, 120 SCRA 930.
[4]  Ibid at pp. 12-14 citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 63 O.G. 358; Gabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno Industrial and Development Corp v. Encaje, 104 SCRA 388.
[5]  Ibid, pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co. v. McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu v. Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v. Cleofas, 67 Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113 Phil. 636; De los Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza, 66 SCRA 174.
[6]  29 Phil. 267 (1915), p. 270.
[7]  Section 1, Article VIII of the 1987 Constitution.
[8]  Section 5(f), Rule 135.