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DISSENTING OPINION

On March 20, 1996, Republic Act No. 8177 was signed into law. Entitled "An Act Designating Death by Lethal Injection as a Method of Carrying Out Capital Punishment, Amending For the Purpose of Article 81 of the Revised Penal Code, As Amended by Section 24 of Republic Act No. 7659," it reads:

"SECTION 1. Article 81 of the Revised Penal Code, as amended by Section 24 of Republic Act No. 7659 is hereby further amended to read as follows:

'Art. 81. When and how the death penalty is to be executed. - The death sentence shall be executed with preference to any other penalty and shall consist in putting the person under the sentence to death by lethal injection. The death sentence shall be executed under the authority of the Director of the Bureau of Corrections endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution.

The Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict.

Pursuant to this all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task.

The authorized physician of the Bureau of Corrections after thorough examination, shall officially make a pronouncement of the convict's death and shall certify thereto in the records of the Bureau of Corrections.

The death sentence shall be carried out not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory without prejudice to the exercise by the President of his executive clemency powers at all times.'

"SEC. 2. Persons already sentenced by judgment, which has become final and executory, who are waiting to undergo the death penalty by electrocution or gas poisoning shall be under the coverage of the provisions of this Act upon its effectivity. Their sentence shall be automatically modified for this purpose.

"SEC. 3. Implementing Rules. The Secretary of Justice in coordination with the Secretary of Health and Bureau of Corrections shall, within thirty (30) days from the effectivity of this Act, promulgate the rules to implement its provisions.

"SEC. 4. Repealing Clause. - All laws, presidential decrees and issuances, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

"SEC. 5. Effectivity. - This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in at least two (2) national newspapers of general circulation, whichever comes earlier. Publication shall not be later than ten (10) days after the approval thereof.

Approved."

On April 28, 1997, the Secretary of Justice Teofisto T. Guingona, Jr., promulgated the Rules of Regulation to Implement Republic Act No. 8177. They provide:

"RULES AND REGULATIONS TO

IMPLEMENT REPUBLIC ACT NO. 8177

Pursuant to Section 3 of Republic Act No. 8177 entitled 'AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659', the undersigned, in coordination with the Secretary of Health and the Director of Corrections, hereby issues the following Rules to govern the implementation of said Act:

SECTION 1. OBJECTIVES. - These Rules seek to ensure the orderly and humane execution of the death penalty by lethal injection.

SEC. 2 DEFINITION OF TERMS. - As used in these Rules, unless the context otherwise requires -

a. 'Death Convict' or 'Convict' shall refer to a prisoner whose death penalty imposed by Regional Trial Court is affirmed by the Supreme Court en banc;

b. 'Lethal Injection' refers to sodium thiopenthotal, pancuronium bromide, potassium chloride and such other lethal substances as may be specified by the Director of Corrections that will be administered intravenously into the body of a convict until said convict is pronounced dead;

c. 'Bureau' refers to the Bureau of Corrections;

d. 'Director' refers to the Director of the Bureau of Corrections;

e. 'Secretary' refers to the Secretary of the Department of Justice.

SEC. 3. PRINCIPLES. - The following principles shall be observed in the implementation of these Rules:

a. There shall be no discrimination in the treatment of a death convict on account of race, color, religion, language, politics, nationality, social origin, property, birth or other status.

b. In the execution of a death penalty, the death convict shall be spared from unnecessary anxiety or distress.

c. The religious belief of the death convict shall be respected.

SEC. 4. PRISON SERVICES. - Subject to the availability of resources, a death convict shall enjoy the following services and privileges to encourage and enhance his self-respect and dignity:

a. Medical and Dental;

b. Religious, Guidance and Counseling;

c. Exercise

d. Visitation; and

e. Mail.

SEC. 5. CONFINEMENT. - Whenever practicable, the death convict shall be confined in an individual cell in a building that is exclusively assigned for the use of death convict. The convict shall be provided with a bunk, a steel/wooden bed or mat, a pillow or blanket and mosquito net.

SEC. 6. RELIGIOUS SERVICES. - Subject to security conditions, a death convict may be visited by the priest or minister of his faith and given such available religious materials which he may require.

SEC. 7. EXERCISE. - A death convict shall be allowed to enjoy regular exercise periods under the supervision of a guard.

SEC. 8. MEAL SERVICES - Meals shall, whenever practicable, be served individually to a death convict inside his cell. Mess utensils shall be made of plastic. After each meal, said utensils shall be collected and accounted.

SEC. 9. VISITATION - A death convict shall be allowed to be visited by his immediate family and reputable friends at regular intervals and during designated hours subject to security procedures.

SEC. 10. LIST OF VISITORS. - A list of persons who may visit a death convict shall be compiled and maintained by the prison authorities. The list may include the members of the convict's immediate family such as his parents, step parents, foster parents, brothers and sisters, wife or husband and children. The list may, upon the request of convict, include his grandparents, aunts, uncles, in-laws and cousins. Other visitors may, after investigation, be included in the list if it will assist in raising the morale of the convict.

SEC. 11. INTERVIEWS OF CONVICTS. - Television, radio and other interviews by media of a death convict shall not be allowed.

SEC. 12. HANDLING OF INMATE MAIL. - The sending and receiving of mail by death convict shall be controlled to prevent illicit communication. Mail shall be censored in accordance with existing prison rules.

SEC. 13. OUTSIDE MOVEMENT. - A death convict may be allowed to leave his place of confinement only for diagnosis of a life-threatening situation or treatment of a serious ailment, if the diagnosis cannot be done or the treatment provided in the prison hospital.

SEC. 14. COURT APPEARANCE. - A death convict shall not be brought outside the penal institution where he is confined for appearance or attendance in any court except when the Supreme Court authorizes, upon proper application, said outside movement. A judge who requires the appearance or attendance of a death convict in any judicial proceeding shall conduct such proceeding within the premises of the penal institution where the convict is confined.

SEC. 15. HOW LETHAL INJECTION IS TO BE ADMINISTERED. - The execution of the death sentence by lethal injection shall be done under the authority of the Director who shall endeavor to mitigate the sufferings of the convict prior to and during the execution.

SEC. 16. NOTIFICATION AND EXECUTION OF THE SENTENCE AND ASSISTANCE TO THE CONVICT. - The court shall designate a a working day for the execution of the death penalty but not the hour thereof. Such designation shall only be communicated to the convict after sunrise of the day of execution, and the execution shall not take place until the expiration of at least eight (8) hours following the notification, but before sunset. During the interval between notification and execution, the convict shall, as far as possible, be furnished such assistance as he may request in order to be attended in his last moments by a priest or minister of the religion he professes and to consult his lawyers, as well as in order to make a will and confer with members of his family or of persons in charge of the management of his business, of the administration of his property, or of the care of his descendants.

SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. - Execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code.

SEC. 18. PLACE OF EXECUTION. - The execution by lethal injection shall take place in the prison establishment and space thereat as may be designated by the Director. Said place shall be closed to public view.

SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after administering the lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain details of, among others, the sequence of events before and after the execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system.

Said manual shall be confidential and its distribution shall be limited to authorized prison personnel.

SEC. 20. QUANTITY AND SAFEKEEPING OF DRUGS PURCHASED. - The exact quantities of the drug needed for an execution of a death penalty shall be purchased by the Director pursuant to existing rules and regulations not earlier than ten (10) days before the scheduled date of execution. The drugs shall be kept securely at the office of the superintendent of the prison where the death sentence is to be executed. All unused drugs shall be inventoried and disposed of properly under the direct supervision of the Director.

SEC. 21. ADMINISTERING LETHAL DRUGS. - The injection of the lethal drugs to a death convict shall be made by a person designated by the Director.

SEC. 22. IDENTITY OF PERSON ADMINISTERING LETHAL INJECTION. - The identity of the person who is designated to administer the lethal injection shall be kept secret.

SEC. 23. PERSONS WHO MAY WITNESS EXECUTION. - The execution of a death convict shall be witnessed only by the priest or minister assisting the offender and by his lawyers, and by his relatives, not exceeding six, if the convict so desires, by the physician and the necessary personnel of the penal establishment, and by such persons as the Director may authorize.

A person below eighteen (18) years of shall not be allowed to witness an execution.

SEC. 24. EXPULSION OF WITNESS. - Any person who makes unnecessary noise or displays rude or improper behavior during an execution shall be expelled from the lethal injection chamber.

SEC. 25. NON-RECORDING OF EXECUTION. - The Director shall not allow the visual, sound or other recording of the actual execution by media or by any private person or group.

SEC. 26. DISPOSITION OF CORPSE OF CONVICT. - Unless claimed by his family, the corpse of a death convict shall, upon the completion of the legal proceedings subsequent to the execution, be turned over to an institution of learning or scientific research first applying for it, for it, for the purpose of study and investigation, provided that such institution shall take charge of the decent burial of the remains. Otherwise, the Director shall order the burial of the body of the convict at government expense, granting permission to be present thereat to the members of the family of the convict and the friends of the latter. In no case shall the burial of a death convict be held with pomp.

SEC. 27. EFFECTIVITY. - These Rules shall take effect fifteen (15) days after publication in a newspaper of general circulation.

APPROVED.

28 April 1997

(Sgd.)

TEOFISTO T. GUINGONA, JR.

Secretary"

Petitioner's conviction for the heinous crime of rape has been affirmed by this Court.¹ To stave off his execution, petitioner now contends: (1) death by lethal injection is unconstitutional for being cruel, degrading, and inhuman punishment; (2) the death penalty violates the International Covenant on Civil and Political Rights, which is part of the law of the land; (3) R.A. No. 8177 unduly delegates legislative power to respondent Director; (4) respondent Secretary unlawfully delegated the legislative power delegated to him under R.A. No. 8177 to respondent Director; and (5) respondent Secretary exceeded the authority delegated to him under R.A. No. 8177 and unlawfully usurped the power to legislate in promulgating the questioned rules.

With due respect to the majority, I agree with the petitioner an submit the following propositions, viz:

I

R.A. NO. 8177 Is Void As It Delegates The Power To

Make Rules Over The Same Subject Matter To Two Persons

R.A. No. 8177 is unprecedented in our annals of lawmaking. A careful reading will show that it actually authorizes two persons to promulgate rules and regulations to implement its provisions - one, the Secretary of Justice and the other, the Director of the Bureau of Corrections. The delegated power of the Secretary of Justice is given in section 3 which provides: "The Secretary of Justice in coordination with the Secretary of Health and Bureau of Corrections shall x x x promulgate the rules to implement its provisions." The delegated power of the Director of the Bureau of Corrections can be gleaned from section 1 of the law which provides "x x x The death sentence shall be executed under the authority of the Director of the Bureau of Corrections endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution. The Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict," Under said Section 1, the power of the Director of the Bureau of Corrections to promulgate rules cannot be denied. The Director cannot carry out his duty to execute the death sentence "x x x endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution" as well as his duty to "x x x take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict," without the power to promulgate the necessary rules. Indeed, it was pursuant to this power to make rules that the Director of the Bureau of Corrections prepared a Manual governing the "details of the procedure prior to, during and after administering the lethal injection x x x." The Manual which is a compendium of the rules of execution is recognized by no less than the respondent Secretary of Justice.

It is my humble submission that this unprecedented act of delegating the power to make rules to two persons over the same subject matter does not have any constitutional warrant. It can easily spawn legal absurdities and incongruities. The two authorities exercising the same power over the same subject matter may promulgate contrasting if not contradictory rules to the prejudice of the remaining rights of a death convict. In the case at bar, the anomalous situation is exacerbated by the possibility that the rules promulgated by the Director of Corrections, a lower ranked official, may contradict the rules of the Secretary of Justice, the top-ranked official in the Department of Justice. We should lay down the case law that the legislative choice of who shall be the delegate to make the rules and regulations to implement a law must be clear and unequivocal. Unless the choice of delegate is clear, the promulgation of the appropriate rules and regulations cannot be done. It is self evident that the legislative choice of who shall promulgate the rules to implement the law is as important as the standard which should guide the delegate in making the rules. Both must be beyond doubt.

II

Assuming Arguendo That R.A. No. 8177 Is Valid, Nonetheless,

The Rules And Regulations Implementing The Law Are Void.

We may assume arguendo that R.A. No. 8177 exclusively delegates to the respondent Secretary of Justice the power to promulgate its implementing rules and regulations. Nevertheless, I agree with the petitioner that the implementing rules and regulations are void.

First. It is elementary that the respondent Secretary of Justice cannot further delegate the power to make rules and regulations to another person. Delegata potestas non potest delegari, delegated power cannot further be delegated is a time honored legal principle. Under section 19 of the Rules and in blatant breach of this principle, the respondent Secretary of Justice delegated to the Director of the Bureau of Corrections the power to determine the "details of the procedure prior to, during and after administering the lethal injection." In addition, he abdicated to the said Director the power to determine "the sequence of events before and after the execution; procedures in setting up the intravenous lines; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system." The matters sub-delegated by the respondent Secretary of Justice to the Director of Bureau of Corrections involve the most significant aspects of the execution process. A wrong rule in any of these aspects of the execution process will deny a death convict the right to die with dignity. Citing Death Row Confidential by Weinstein and Bessent, petitioner relates some bizzare experience that have resulted from the inept executions of some death convicts by lethal injection, viz:

x x x

"27.1. On May 3, 1995, EMMITT FOSTER took thirty (30) minutes to die after the drugs entered his bloodstream. The delay in his death was attributed to an overly tight leather strap binding Foster's arm (which) slowed the process to a snail's pace. According to the reporters who covered the execution, Foster was 'gasping, slightly convulsing' when the blinds in the chamber were drawn.

"27.2. On January 24 1992, RICKEY RAY RECTOR'S death took on even ghastlier proportions. Rector was 298 pounds; it took the executioners more than fifty (50) minutes to find a usable vein in his arm. All this while, Rector, who was seriously brain damaged by reason of a lobotomy, was helping the personnel to locate a vein and all throughout, Rector could be heard moaning loudly as the staff tried to insert the line into a suitable vein.

"27.3. On March 13, 1985, STEPHEN PETER MORIN lay strapped on the gurney for forty five (45) minutes while the technicians repeatedly pricked his arms and legs with a needle in search of a vein suitable for the IV line.

"27.4. On August 20, 1986, RANDY WOOLS had to help his executioners find a good vein so that he could die. On June 24, 1987, Elliot Johnson waited on the gurney, awake and fully conscious for thirty five minutes, while the executioners searched for a place to insert the line.

"27.5. On December 13, 1988, RAYMOND LANDRY was killed at 12:45 in the morning after a fourteen-minute delay when one of the two needles sprang a leak, sending lethal liquid shooting across the room. The leak was caused by a "blowout" which results from the syringe coming out of the vein.

"27.6. On May 24, 1989, STEPHEN MCCOY had such a violent physical reaction to the drugs, consisting of heaving chest, gasping and choking.

"27.7. On May 10, 1994, after the execution of JOHN WAYNE GACY had begun, one of the three lethal drugs used clogged the tube; the tube had to be replaced with a new one."

The choice of the delegate who shall cobble the rules and regulations that will implement a law is part of lawmaking and hence, this power to choose is the sole prerogative of Congress. It follows that the delegate so designated by Congress has no authority to choose another who shall discharge the power given to him by Congress. It is a duty that the delegate cannot abdicate.

SECOND. It is bad enough that the respondent Secretary of Justice surrendered to the Director of Corrections the power to promulgate the rules on "x x x the sequence of events before and after the execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system." Worse still, under section 19 of the Rules, the respondent Secretary of Justice ordered that the rules governing these details should be contained in a Manual that "shall be confidential and its distribution shall be limited to authorized prison personnel." In other words, the operating Manual is a secret Manual whose content is unknown to the person to be executed and unbeknown to the public as well. The secret Manual can well contain arbitrary, capricious and whimsical rules and yet the rules cannot be challenged as they are known to the Director and authorized prison personnel but not to the person most affected --- the death convict. If basic due process demands that no person can be denied his lesser property rights thru unpublished laws, there is more reason to hold that one cannot be denied his greater right to life thru unpublished rules. The secret Manual denies a death convict the right to know how he will die.

THIRD. While the respondent Secretary of Justice was unenthusiastic in crafting the rules on the critical aspects of the execution process, he was over enthusiastic in enacting rules on matters unrelated to the subject matter of R.A. No. 8177. R.A. No. 8177 is stark clear on its subject matter. As its title indicates, it is merely "An Act Designating Death by Lethal Injection as the Method of Carrying Out Capital Punishment x x x." Yet, the Rules promulgated by the respondent Secretary overly arched on matters too remotely connected with the subject matter of R.A. No. 8177 such as prison services, manner of confinement, religious services, exercise, meal services, visitation and interviews, private correspondence and communication, court appearance, etc. These elaborate rules are not germane to the purpose of R.A. No. 8177. A re-reading of section 3 of R.A. No. 8177 will reveal that the authority of the respondent Secretary of Justice is limited to promulgating rules on how lethal injection should be administered to the death convict. Nothing less and nothing more.

But this is not all. Under section 17 of the Rules, the respondent Secretary of Justice ordained that "the execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age." The rule suspending the execution of a pregnant woman and the commutation of the death sentence of a convict over seventy (70) years of age is in harmony with Article 83 of the Revised Penal Code. There is however, no law that provides that "execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of sentence x x x." In ordaining this rule, the respondent Secretary engaged in out-and-out legislation which is taboo for an executive official. Our long undisturbed jurisprudence is that the "x x x rule making power of a public administrative body is delegated power, which it may not use either to abridge the authority given it by the Congress or the Constitution or to enlarge its power beyond the scope intended. A public administrative body may make only such rules and regulations as are within the limits of the powers granted to it."²

III

R.A. No. 8177 Implementing The Death Penalty

Violates International Norm

At the core of the issue of death penalty is the inherent and inalienable right to life of every human being. The recognition of this inherent right to life is one of the self-evident principles that inspired the adoption of five (5) major international covenants: the Universal Declaration of Human Rights in 1948, the International Covenant on Economic, Social and Cultural Rights in 1966, the International Covenant on Civil and Political Rights in 1966, and the two Operational Protocol to the latter Covenant. These legal instruments are collectively called the International Bill of Human Rights.³cräläwvirtualibräry

The universal fight for the recognition of the right to life should never be lost in the mist of history. In December 1948, the United Nations General Assembly adopted without dissent the Universal Declaration of Human Rights.⁴ The Universal Declaration is a pledge among nations to promote rights inherent in each and every individual. Theses rights were distinguished from mere privileges that may be awarded by governments for good behavior and withdrawn for bad behavior.⁵ Thus, Article 3 of the Universal Declaration decrees that "everyone has the right to life, liberty and security of the person." The Philippines is a proud signatory to this document.

On December 16, 1966, the United Nations General Assembly went on to adopt the International Covenant on Civil and Political Rights (ICCPR).⁶ It was opened for signature on December 19, 1966 and entered into force on March 23, 1976. With respect to the death penalty, this Covenant provides:⁷cräläwvirtualibräry

"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

"2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

"x x x.

"4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

"5 Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

"6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant."

On July 27, 1982, the United Nations Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the ICCPR.⁸ It stated:

"(while) it follows from Article 6 (2) to (6) that State parties not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the 'most serious crimes'. The Article also refers generally to abolition in terms which strongly suggest (pars 2(2) and (6)) that abolition is desirable.

"x x x.

"The Committee is of the opinion that the expression "most serious crimes" must be read restrictively to mean that the death penalty should be quite exceptional measure. x x x."

As of December 31, 1996, parties to the ICCPR has totalled 137 including the Philippines.⁹cräläwvirtualibräry

The Optional Protocol to the Civil and Political Rights was adopted by the United Nations General Assembly on December 16, 1966.¹⁰ It entered into force on March 23, 1976. This Protocol provides for the mechanism for checking state compliance to the provisions of international human rights instruments such as a reportorial requirement among governments. The Philippine signed this Protocol on December 19, 1966 and ratified it on August 22, 1989. As of December 1996, this Optional Protocol has 89 state parties.¹¹cräläwvirtualibräry

The Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty was adopted and opened for signing by the General Assembly on December 15, 1989.¹² It entered into force on July 11, 1991.¹³ The Philippines together with 58 other states voted in favor of the adoption of this document, while 26 voted against and 48 abstained.¹⁴However, the Philippines has not ratified this Protocol. Under this Protocol, States must take all necessary measures to abolish the death penalty. More specifically, it provides that:¹⁵cräläwvirtualibräry

"1. No one within the jurisdiction of a State Party to the present Optional Protocol shall be executed.

"2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction."

As of December 1996, 25 States have ratified this Optional Protocol.¹⁶cräläwvirtualibräry

From its inception, the United Nations has been steadfast in its view that like killings which take place outside the law, the death penalty denies the value of human life. In United Nations General Assembly Resolutions 2857 (XXVI) and 32/61 of 6 December 1977 and in Economic and Social Council Resolutions 1574(L), 1945 (LIV) and 1930 (LVIII) the abolition of the death penalty was marked as one of the high aims of the assembly of civilized nations.

In recent years, the United Nations has adopted numerous resolutions to make it more difficult for states to implement the death penalty. Thus, on May 24, 1989, the Economic and Social Council by Resolution 1989/64 recommended that Member States take steps to implement the Safeguards Guaranteeing Protection of the Rights of Those acing the Death Penalty.¹⁷ The Safeguards have nine provisions specifying the basic guarantees in criminal justice proceedings, in the context of the rights of the offenders charged with a capital offense.¹⁸ The Safeguards were approved by the ECOSOC on the understanding that they should not be invoked to delay or prevent the abolition of capital punishment.

On April 3, 1997, in its 53rd Session, the Commission on Human Rights adopted Resolution 1997/12 on the Question of the Death Penalty.¹⁹ In this resolution the Commission took note of the report of the Secretary General on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty,²⁰ which states that there has been a considerable shift towards the abolition of the death penalty.²¹ Thus, "convinced that abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights", the Commission resolved to take the following actions:

"1. Calls upon all States to the International Covenant on Civil and Political Rights that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;

"2. Urges all States that still maintain the death penalty to comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes, not to impose it for crimes committed by persons below eighteen years of age, to exclude pregnant women from capital punishment and to ensure the right to seek pardon or commutation of sentence;

"3. Calls upon all States that still maintain the death penalty to observe the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, set out in the annex to Economic and Social Council Resolution 1984/50 of 25 May 1984;

"4. Call upon all States that have not yet abolished the death penalty to progressively restrict the number of offenses for which the death penalty may be imposed;

"5. Also calls upon all States that have not yet abolished the death penalty to consider suspending executions, with a view to completely abolishing the death penalty."²²cräläwvirtualibräry

Regional organizations have also taken forwards steps towards the abolition of death penalty. On April 23, 1983, the Sixth Protocol to the European Convention on Human Rights was opened for signature by member States of the Council of Europe. It categorically condemned the abuses of the death penalty during the Second World War. The Sixth Protocol is the first binding international agreement for the abolition of the death penalty. By ratifying the Protocol, a state accepts an obligation under international law to abolish the death penalty for peacetime offenses. Twelve of the 22 western European countries belonging to the Council of Europe had ratified the Sixth Protocol by January 1989. Three other member States have signed the protocol and indicated their intention to ratify it at a later date.

All these legal developments show the indisputable emergence of an international norm abolishing the death penalty. William Schabas observed that the adoption of the International Bill of Human Rights has firmed up this international norm.²³ I respectfully submit that we should respect this international norm consistent with the spirit of section 2, Article II of our Constitution which mandates that the Philippines "x x x adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations."

IV

At The Very Least, Execution Of Our Death Convicts Should

Be Suspended Pending Decision Of Our Government To

Either Reject Or Ratify The Second Optional Protocol

It cannot be gainsaid that the movement towards the abolition of death penalty is unstoppable. Amnesty International reports that as of October 1996, a total of 58 countries have abolished the death penalty for all crimes; 15 countries have abolished the death penalty for ordinary crimes, and 26 are abolitionist de facto, or countries and territories which retain the death penalty for ordinary crimes but can be considered abolitionist in practice in that they have not executed anyone during the past ten (10) years or more, or in that they have made an international commitment not to carry out executions.

As aforestated, the Philippines voted in favor of the Second Optional Protocol to the ICCPR Aiming the Abolition of the Death penalty. It appears, however, that the Philippines as of this date has not ratified this Protocol. But, pending our government decision either to reject or ratify this Protocol, the more prudent stance of the authorities should be to suspend the execution of any death convict. We have a new Congress and a new President and they need will time to study the implications of this Second Protocol viz our commitment to be bound by international laws and to be guided by international norms.

V

Beyond The Legal Arguments, The Bottom Line Is That

Death Penalty Does not Deter The Commission Of Crimes

Between January 1994 and September 1997, more than 410 people have been sentenced to death by our trial courts, mostly of rape, murder or drug offense.²⁴ As of September 17, 1998, this Court had confirmed seventeen (17) death sentences, acquitted seven (7) accused, commuted fourteen (14) sentences to prison terms and sent five (5) other cases back to the trial court for re-trial.²⁵cräläwvirtualibräry

These irrefutable statistics show the non-deterrent affect of death penalty on criminals in our country. Abroad, international studies after studies of high scholastic value have also failed to evince evidence that the death penalty has any unique capacity to deter others from committing particular crimes.²⁶ In 1988, a major report was submitted to the United Nations by Roger Hood, Director of the Center for Criminological Research at Oxford University in the United Kingdom. This study was prepared and published pursuant to Economic and Social Council Resolutions 1986/10, section X and 1989/64. In the latter Resolution the Secretary General was also requested to make this study available together with other relevant studies to the Eighth United Nations Congress on Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 27 August/7 September 1990). The study concluded that "xxx (the) research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment." Such proof is unlikely to be forthcoming for this study simply confirmed the results of two earlier reports submitted to the UN by Marc Ancel, Director of the Criminal Science Section of the Institute of Comparative Law of Paris, entitled Capital Punishment (1962) covering the period 1956-1960 and Norval Morris, Professor of Law and Criminology and Director of the Center for Studies in Criminal Justice, University of Chicago, entitled Capital Punishment: Developments 1961-1965 (1967), which shattered the deterrence theory. Other studies show that convicted persons did not remember thinking they might be sentenced to death before committing the crime despite their knowledge of the death penalty. They found that it is incorrect to assume that people who commit such serious crimes such as murder do so after rationally calculating the consequences. Empirical evidence further shows that murders are often committed in moments of passion, when extreme emotion overcomes reason or under the influence of alcohol or drugs or in moments of panic. It was further established that people who plan serious crimes in a calculated manner to decide to proceed despite the risk in the belief that they will not be caught. In other cases, people who commit violent crimes are highly unstable or mentally ill. In none of these cases did fear of the death penalty deter the commission of crimes.

Apropos is the intelligent counsel of a leading member of the United Kingdom parliament during a debate on the death penalty in 1983: "If the deterrent case is to be accepted, if we are to vote for capital punishment as a deterrent, we at least ought to be sure that it deters. If we are to hang men and women by the necks until they are dead, we ought to do it on more than a hunch, a superstition, a vague impression"²⁷If in truth, the death penalty deterred potential offenders more effectively than other punishments, one would expect that in countries with similar legal systems, those which have the death penalty for a particular crime would have a lower crime rate than those which do not. Similarly, a rise in the rate of crimes punishable by death would be expected in states which abolished the penalty and a decline in crime rates would be expected among states which introduced the punishment for those crimes. However, statistics from abolitionist countries do not show that abolition of the death penalty caused a rise in the crime rate.

Weaker than the argument of deterrence is the argument of retribution to justify the death penalty. This argument purveys the Old Testament idea of an eye for an eye and a tooth for a tooth justice; that certain people deserve to be killed as repayment for the evil done; and that there are crimes so offensive that killing the offender is the only just response. The argument propelled by unthinking emotion. While the desire for vengeance can be understood, its exercise deserves an impassioned consideration for retribution makes impossible demands on our justice system. Biases inherent in all legal systems and unavoidable errors of human judgment preclude a system which can mete out death in a fair and fail proof way.²⁸ In the United States, Thorsten Sellin "examined statistics on prosecutions, convictions and executions for murder and concluded that 'retributive capital justice is tainted by bias and influence of factors beyond the control of courts of justice, such as the poverty of the defendant, which prevents him from engaging competent counsels skilled in the art of criminal defense.'"²⁹ Even those who ardently advocate retribution by death often paradoxically plead that it should be used sparingly, for fear that it would dull the moral sensitivity of the community and lose its terrifying effect.³⁰ As perceptively observed: "Such analyses suggest a sacrificial element in the use of the death penalty. Since it is impossible to follow through fully the logic of retribution argument, a token number of prisoners are executed to satisfy popular demand."³¹ We humbly add that this Court should not participate in a lottery where life will be at stake. Even a decision to execute everyone convicted of a particular crime, such as the mandatory imposition of death penalty for certain offenses, would fail to meet the fundamental requirement of fairness. In truth, by ruling out mitigating circumstances and refusing to consider the limitations of any attempt to define crimes, mandatory death sentences render judicial fairness even more difficult to achieve. The inevitable result will be an arbitrary threshold for deciding who lives and who dies. In Singapore and Malaysia, to cite examples, the death penalty is mandatory for possession of more than 15 grams of heroin, hence, only a tiny difference between life and death.³² It ought to be seen that the argument for retribution is often no more than a desire for vengeance masked as a principle of justice.

Our experience in the Philippines should speak for itself. In 1989, Amnesty International Undertook a special study to examine how the death penalty was used in our country prior to its abolition in 1987.³³ The study uncovered several cases of innocent people sentenced to death who were later acquitted by this Court and at least one case of a prisoner who may not have been guilty of a capital offense but was executed. In many of these cases, it was proven that the death convicts had been pressured into giving involuntary confessions. In one case, an innocent man served 17 years in prison before his conviction was overturned. Several cases validated earlier studies that the death penalty did not serve as a deterrent to the commission of crime. The reason was because the suspected criminals were either ignorant of the law or because they thought they could beat the law. Some purposely committed the crimes for political reasons and thus, were willing to risk their lives.

In fine, the reimposition of death penalty in the Philippines highlights the risks of unfairness and error which exists in all criminal justice system. It is for this reason that even while the death penalty was in force, it was not implemented wholeheartedly. No executions have taken place since 1976. And from 1972 to 25 March 1985, out of the 794 people given the death penalty by the trial courts on 28% of the sentences have been affirmed and some 75 of these convictions have been reversed by this Court.³⁴cräläwvirtualibräry

The dark reality of the death penalty is that who is executed and who is spared is often determined not only by the nature of the crime but also by their social background, their financial means or the political opinions of the defendants. This is confirmed by the undefiled study made by Dr. Ricardo Zarco of the University of the Philippines, which showed that almost all the convicts put to death since 1947 came from the lower socio-economic class. Only three came from well-to-do families like the persons who committed rape against Maggie dela Riva.³⁵

V

CONCLUSION:

Right To Life Not Subject To Popular Vote

It is to be sadly noted that when there is a public-clamor to stop the rising tide of criminality, the death penalty is always suggested as a quick fix solution. The issue of whether the State has the right to kill should not, however, be resolved on the basis of popularity poll. Right and righteousness are not based on what is the fashion of the day. We cannot give a blind eye to the enlightened argument that the way to deter crime is not to increase the severity of punishment but to increase the likelihood of detection, arrest and conviction. We cannot be indifferent to the internationally accepted view that rehabilitation and reformation of criminals ought to be our main penal goal. Let us hearken to the wisdom of Article 10 of the International Covenant on Civil and Political Rights which provides that the "penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation."

It is not too much to ask that we rejoin the mainstream of civilized nations.

I vote to grant the petition.

Endnotes:

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¹ People v. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682.

² People v. Lim, 108 Phil 1091 [1960]. Hijo Plantation Inc. v. Central Bank of the Philippines, 164 SCRA 192 [1988].

³ The Charter of the United Nations, agreed to in 1945, set up a Human Rights Commission. The members of the Commission as a compromise decided that the Bill should have three parts: a declaration proclaiming general principles, a "covenant or covenants" embodying these principles in a form which would be binding on States which ratified them, and "measures of implementation" or provisions for review of the way in which States carried out their covenant obligations.

⁴ When the State Kills The Death Penalty versus Human Rights, Amnesty International Publication, April 1989 AI Index: ACT 51/11/89 London United Kingdom, p.1.

⁵ Id.

⁶ United Nations Treaty Series, vol. 999, p. 171.

⁷ Article 6.

⁸ General Comment on Article 6 of the International Covenant on Civil and Political Rights, adopted at its 378th meeting (16th session) on July 27, 1982 by the Human Rights Committee set up under the ICCPR.

⁹ Five signatures were not followed by ratification, See Human Rights Instruments Chart of Ratification, ST/HR/4/Rev. 15, United Nations Publication (Sales No. E.87XIV.2) 1997.

¹⁰ Supra note 6.

¹¹ Two signatures were not followed by ratification, See Human Rights Instruments Charts of Ratification, ST/HR/4/Rev. 15, United Nations Publication (Sales No. E.87.XIV.2) 1997.

¹² General Assembly Resolution 44/128, UN Yearbook, 1989 p. 485.

¹³ Doc. A./RES/44/128.

¹⁴ Supra note 12.

¹⁵ Article 1

¹⁶ See Human Rights Instruments Chart of Ratification, ST/HR/4/Rev. 15 United Nations Publication (Sales No. E.87.XIV.2) 1997.

¹⁷ The Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty were adopted by the Economic and Social Council in 1984, on the recommendation of the United Nations Committee on Crime Prevention and Control. They were endorsed in 1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan, Italy from 26 August to September 1985.

¹⁸ Among the guarantees provided are: the right to benefit from lighter penalties under certain conditions; to appeal and seek pardon; with exemptions from capital punishment (for persons below 18 years of age, pregnant women, new mothers and persons who become insane); with the necessary evidentiary requirements and with suspension of capital executions; capital punishment can be imposed only for the most serious crimes, i.e. intentional crimes with lethal or extremely grave consequences.

¹⁹ Adopted by a roll call vote of 27 votes to 11 with 14 abstentions. Commission on Human Rights, Report on the 53rd Session, 10 March-18 April 1997, ECOSOC Official Records, 1997, Supplement No. 3, UN.E/CN.4/1997/L.11/Add.1 p. 19.

²⁰ Report of the Secretary General, United Nations Standards and Norms in the Field of Crime Prevention and Criminal Justice, Commission on Crime Prevention and Criminal Justice, Fifth Session, Vienna 21-31 May 1996. E/CN.15/1996/19.

²¹ Id.

²² Adopted by a roll-call vote of 27 votes to 11 at the 37th Meeting of the United Nations Commission on Human Rights, April 3, 1997. The Philippines in a Joint Statement with other 27 States disassociated itself from Resolution 1997/12.

²³ William A. Schabas, The Abolition of the Death Penalty in International Law, second ed., 1997.

²⁴ AI Index: ACT 50/01/98.

²⁵ Supreme Court Data on Death Penalty.

²⁶ See When the State KillsThe Death Penalty v. Human Rights, supra note 4 at 11-12. This finding was also reflected in United Nations, The Question of the Death Penalty and the New Contributions of the Criminal Sciences to the Matter, A Report to United Nations Committee on Crime Prevention and Control, United Nations Social Affairs Division, Crime Prevention and Criminal Justice Branch, Vienna, 1988, p. 110, cited in When the State Kills.

²⁷ Roy Hattersley, speaking in a debate on the death penalty in the United Kingdom House of Commons (Lower House of Parliament) on 13 July 1983 cited in When the State Kills at 9.

²⁸ Supra, note 4 at 6-7.

²⁹ Thorsten Sellin, The Penalty of Death, Sage Library of Social Research, Vol. 102, London, 1980 at 110-118, cited in when the State Kills at 17.

³⁰ Sellin at 55, 71-73.

³¹ Supra note 4 at 17.

³² Id.

³³ Philippines: Case Studies in the Use of the Death Penalty (AI Index: ASA 35/08/89) April 1989.

³⁴ Record of the Constitutional Commission.

³⁵ Daniel Martinez, "Crimes and Capital Punishment," Criminal Justice Journal, I, No. 2 (1980) at 38-39.