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^{SEPARATE OPINION}

VITUG, J.:

Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I am some of my brethren on the Court, who hold similarly, have consistently expressed this stand in the affirmance by the Court of death sentences imposed by Regional Trial Courts.

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 in 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 circumstance arises that ought to delay the execution, there is an imperative duty to investigate the emergency and to order a postponement. x x x.

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or modify the law that could benefit the convicted accused are not essentially preclusive of one another nor constitutionally incompatible and may each be exercised within their respective spheres and confines. Thus, the stay of execution issued by the Court would not prevent either the President from exercising his pardoning power or Congress from enacting a measure that may be advantageous to the adjudged offender.

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 timely³ 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 theretofore already provided in the Revised Penal Code or, let alone, just because of it. The term compelling reasons would indicate to me 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.

Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

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.

Endnotes:

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¹ Candelana vs. Caizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate Appellate Court, 178 SCRA 645; Lipana v. Development Bank of Rizal, 154 SCRA 257; Lee vs. De Guzman, 187 SCRA 276; Bachrach Corporation vs. Court of Appeals, G.R. No. 128349, 25 September 1998

² 29 Phil. 267.

³ At least for Mr. Echegaray.

⁴ G.R. No. 124329, 14 December 1998.