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DISSENTING OPINION

Consistent with my view that Republic Act 7659, the Death Penalty Law, is unconstitutional,¹ I believe that RA 8177, the Lethal Injection Law, has likewise no place in our statute books.

Power to Legislate for a Constitutional

Purpose Includes Power to Prescribe

Means of Achieving It

By virtue of its inherent legislative powers and particularly Section 19 (1), Article III of the Constitution, stating in part that "[n]either shall death penalty be imposed unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it," Congress enacted RA 7659 imposing death penalty on certain crimes it perceived as heinous.

Of late, the legislature has also seen fit to alter the method of carrying out the capital punishment, from electrocution² to lethal injection, via RA 8177, the constitutionality of which is herein questioned.

Concededly, it is a settled principle in constitutional law that a government which has the right to do an act and the duty of performing that act must necessarily be allowed to select the means of reasonably accomplishing it.³ Based on the doctrine of implied powers of State, Congress has the authority to prescribe the means to carry into effect the rights expressly given and the duties expressly enjoined by the Constitution. The end being required, it is deemed a just and necessary implication that the means to accomplish it is given also.⁴

Unconstitutionality of

Death Penalty Law

However, the end sought to be fulfilled and the means prescribed to accomplish such end must still pass the tests of constitutionality and validity.⁵ More important, the ultimate goal must be clearly within the scope of the Constitution.

In my 32-page Dissenting Opinion⁶ on the Court's February 7, 1997 Resolution denying Echegaray's Motion for Reconsideration, I submitted that Congress, in enacting RA 7659, failed to discharge its constitutional burden of proving the existence of "compelling reasons" to prescribe death for "heinous" crimes. In batting for the unconstitutionality of said statute, I summarized (towards the end) my reason as follows:

"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."

Where End Sought Is

Unconstitutional, so Is

The Means to Achieve It

Because of the unconstitutionality-of the Death Penalty Law, I cannot hold for the legality of RA 8177. The only purpose of RA 8177 is to have a means of carrying out the death sentence -- by lethal injection. But if RA 7659 is inconsistent with the letter and the spirit of the Constitution, essentially, there is nothing to implement. With the abolition of the death penalty in 1987 Constitution, any means to carry it out is without any basis and, therefore, is illegal. It is definitely beyond the scope of the fundamental law. The spring cannot rise higher that its source.

Parenthetically, I believe that Article 81 of the Revised Penal Code, which provides that the death sentence shall be executed by electrocution, has been repealed with the ratification of the 1987 Charter. Having abrogated the extreme penalty of death, the Constitution must have necessarily abandoned the means by which the sentence was then enforced. Until and unless Congress passes a new law that fulfills the requirements laid down by the 1987 Constitution, no death penalty can be imposed and no means for its enforcement can be legally adopted.

WHEREFORE, I vote to grant the Petition and to declare RA 8177 unconstitutional.

Endnotes:

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¹ See Dissenting Opinion in People v. Echegaray, 267 SCRA 682, 734-758, February 7, 1997.

² Art. 81 of the Revised Penal Code, is amended by 24 of RA 7659.

³ M'Cullock v. Maryland, 4 L ed 579.

⁴ Prigg v. Pennsylvania, 10 L ed 1060.

⁵ See Ruddi v. Rossi, 248 US 104; First National Bank v. Fellows, 244 US 416; Fair Bank v. US, 181 US 283: "Let the end be legitimate, let it be within the scope if the Constitution, and all means which are proper, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution are constitutional."

⁶ Supra.