Department of Justice: Articles; Capital Punishment Revisited

Department of Justice

Articles: Capital Punishment, Revisited
By Rodolfo A. Arizala


I. Introduction

The question of Capital Punishment or death penalty has resurfaced recently like a chronic pain in the socio-political life of the nation.

It was probably provoked by the commutation of death sentences to life imprisonment of more than one thousand convicts announced by the President of the Philippines on Easter Sunday or Resurrection, followed by a certification as urgent a piece of legislation (House Bill 4826) on the elimination of Capital Punishment from our statute books.

The issue on the “pro” and “con” of the elimination of capital punishment has been debated and discussed long time ago. As a matter of fact in 1970, this writer published an article in the UST Law Review, (Vol. XX, No. 4, March-April 1970 issue), “Should Capital Punishment Be Abolished?” This was followed by an updated article in April 1990 which appeared in the Manila papers (The Philippine Daily Inquirer and the Philippine Journal) under the title: “Capital Punishment Should Not Be Restored.”

In view, however, of the renewed interest on the issue of Capital Punishment and the provision in the 1987 Philippine Constitution that death penalty shall not be imposed “unless for compelling reasons involving heinous crime, the Congress provides for it,” it is relevant to take a second look at the subject of Capital Punishment by retracing its history and develop-ment from the early period up to the present.

But before we take a second look at the subject, let us first define what is capital punishment. Capital punishment may be defined as the “imposition of the death penalty on offenders found guilty of certain major crimes.”

The method of execution is generally done either by hanging, gas chamber, electrocution, firing squad or lethal injection. In the Philippines Republic Act No. 8177 mandates that death sentence shall be carried out through lethal injection.

II. Early History; UN Back-ground Study

The movement to abolish capital punishment in civilized countries is not new. Since the days of Beccaria, a theoretical controversy on the question on capital punishment has been going on. And as early as 1651, George Fox had raised the issue of death penalty. He advocated in his pamphlet “To the Parliament and Commonwealth of England” that death penalty should be applied only in cases of murder. However, the first case of total abolition of death penalty by statute started from the eighteenth century. In 1876, for example, under the direct inspiration of Beccaria, Leopold II of Tuscanny promulgated his famous code abolishing death penalty.

The following year, Joseph II of Austria promulgated his penal code doing away with capital punishment.

In modern times, the question of capital punishment, of the laws and practices relating to it, and of the effects of capital punishment and its abolition thereof on the rate of criminality, was taken up by the United Nations. Thus, on 20 November 1959, during the 14th session of the UN General Assembly, a resolution was adopted

inviting the Economic and Social Council to initiate a study on the question. And the Economic and Social Council on 6 April 1960, adopted resolution No. 747 (XXIX) stating that the council should be provided with a factual review of the various aspects of the question of capital punishment and requested the UN Secretary General to prepare such a review.

The said resolution also provided that the Secretary General may consult, as he deemed appropriate, the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders set up under General Assembly Resolution 415 (V).

In UN Resolution No. 1918 (XVIII), the General Assembly requested the Economic and Social Council to ask the Committee on Human Rights to study the report on capital punishment and the comments on it of the Ad Hoc Advisory Committee of Experts on the Prevention of Crime and the Treatment of Offenders (E/3724) and to make such recom-mendations on the matter as it deemed appropriate.

III. Report on Capital Punish-ment

Justice March Ancel of the French Supreme Court and Director of the Criminal Science of the Institute of Comparative Law of Paris, prepared a report on capital punishment based on the replies of two questionnaires sent by the UN Secretary General, in addition to whatever information he (Justice Ancel) has already gathered personally on the subject.

The two questionnaires were:

1) A questionnaire requesting infor-mation on the laws, regulations and practices in force on capital punishment sent to members and certain non-member states;

2) A questionnaire requesting infor-mation on the deterrent effect of the death penalty and on the consequences of its abolition, sent to national correspondents of the Secretariat in the field on the prevention of crime and the treatment of offenders, and to non-governmental organizations.

In his report, Justice Ancel classified the countries or territories as follows:
1). Countries and territories which have kept the death penalty; and

2) Countries and territories which have abolished the death penalty. The latter group is divided into three categories: 1) Abolitionist de jure; 2) Abolitionist de facto; and 3) Almost completely abolitionist.

Abolitionist de jure are those countries in which the death penalty has been abolished by an expressed constitutional or legislative pro-visions such as Argentina, Australia, Austria, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Germany, etc.
Abolitionist de facto are those countries whose positive law (penal code or special statute) makes provision for death penalty and where sentences of death are passed but never carried out because of established custom, such as in Belgium, Liechtenstein, Luxemburg, and the Vatican State.

Almost completely abolitionist are those countries or territories in which the death penalty is provided only for offenses committed in certain exceptional circumstances and in which capital punishment has, in fact, virtually disappeared such as in New South Wales, Nicaragua, and in certain States of the United States like Michigan, North Dakota and Rhode Island.

In this connection, it may be asked: “To what category our country belongs?
Under the Philippine Revised Penal Code, law and jurisprudence, the following offenses are examples which may be punishable by death: parricide (Art. 246); kidnapping or detention to extort ransom (Art. 267, as amended by RA No. 19); robbery with homicide (Art. 294, para 1 ); murder (Art. 248); treason (Art. 114); collaboration with the enemy (Art. 120, para 3); qualified piracy (Art. 123); if a person is injured or killed as a result or on occasion of cattle rustling (Sec. 8, PD 533); use of explosives in fishing and if it causes loss of human life (Sec. 3(a) & (b) PD 534); and if death results from the commission of arson (Sec. 5; PD 1613).

To these were added subversion, unlawful possession of firearms, hijacking, embezzlement, and drug-related offenses.

However, death penalty is not imposed ; 1) when the guilty person is more than70 years old (Art. 14); 2) when eight justices of the Supreme Court failed to confirm the death penalty imposed by the lower court (Sect. 9, Judiciary Act of 1948).

It is also observed that under Philippine laws, if death penalty is imposed by the lower court, the case is automatically appealed to the Supreme Court by virtue of Rule 122, Section 9, Rules of Court of the Phillippines. The execution of death sentence is suspended in the following cases: 1) a woman within three years following the sentence;

2) while the woman is pregnant. In case of a person older than 70 years old, the death sentence shall be commuted to the penalty of reclusion perpetua (Art. 83 & 40), and in case of insanity which developed after the trial but before serving sentence, it suspend the sentence with respect to personal penalty. If a minor is under 16 years old, the court shall suspend all further proceedings and shall commit such minor to the custody of a public or private benevolent or charitable institution (Art. 80).

The 1987 Constitution of the Philippines abolished capital punishment. Section 19(1), Article III thereof provides as follows: “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.”
Because of the aforequoted provision of the Philippine Constitution, it may be said that the Philippines in 1987 has joined the “Abolitionist de Jure” group those countries in which death penalty has been abolished by an express constitutional or legislative provision. Commissioner Joaquin G. Bernas, S.J., in his book The Constitution of the Republic of the Philippines, A Commentary, (Vol I, First Edition, 1987, p. 443) commenting on the aforequoted provision said: “By a show of hands the abolition of the death penalty was approved 19-18. On motion of Commissioner Rodrigo nominal voting was called and the outcome was still for abolition, 22-17.”

However, because of an amendment authored by one of the Commissioners, death penalty may be reimposed if “for compelling reasons involving heinous crimes, the Congress hereafter provides for it.”

Pursuant to such provision in the 1987 Constitution, in December 1993, to address the rising criminality and incidence of heinous crimes, Republic Act No. 7659 was passed reimposing the death penalty.

Said Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandadtory while 21 are death eligible. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), there are now 52 capital offenses, 30 of which are death mandatory and 22 are death eligible in our statute books.

In a 2004 survey conducted by FLAG (Free Legal Association Group), it was reported that of the 1,121 death row inmates whose death sentences were recently commuted by the President to life imprisonment, 22 percent or 198 of them were convicted of murder and/or parricide; 45 percent (405) were found guilty of rape; 14.5 percent (129) of kidnapping; 11 percent (101) of robbery; 0.4 percent(4) of carnapping; 0.8 percent (7) of bribery; and three percent (26) of violation of dangerous drugs laws.

In view of the reimposition of death penalty in 1993 through Republic Act No. 7659, some observers opined that the Philippines belong to the group of countries which is “almost completely abolitionist” if not a country which has kept the death penalty.
IV. Arguments for and against Capital Punishment

A. In favor of Capital Punishment

1. It has deterrent effect.
2. Atonement – death penalty is the only just punishment for the gravest crimes.
3. Public opinion remains generally favorable to capital punishment and the police and prison officials believe in its effectiveness.
4. A particularly potent weapon is needed in dealing with dangerous criminals to protect society.
5. Confinement for life or imprisonment would be more and cruel punishment than death because perpetual imprisonment leaves no hope to the offender.
6. Execution of the offender represents a saving of public funds because taxpayers are not called upon to pay for the indefinite maintenance of anti-social crimi-nals.

B. Against Capital Punishment

1. Sanctity of human life. Since it is wrong to kill, the state should be the first one to respect human life.
2. The modern tendency is to regard penalties as having no object other than prevention and punish-ment and this could be achieved other than taking human life.
3. Death penalty has no deterrent effects as shown by statistics. Abolition of death penalty, on the other hand, does not lead to increase the crimes.
4. Death penalty is a sort of judicial or legal murder, and it debases justices.
5. Death penalty is a form of cruelty and inhumanity. Doctors report that even the most efficient methods do not result in instantaneous painless death. It affects not only the criminal but also his families and relatives with mark of infamy.
6. Society can protect itself by other means.

V. General Observations.

A. In countries /territories where death penalty exists.
The modern tendency is more and more to drop the mandatory character of the death penalty. And in many legal systems, the death sentence is mandatory only for certain specific crimes or in certain special courts. As a general rule, only in cases of capital murder or crimes against the external security or integrity of the state death penalty is mandatory. A death sentence may not be imposed if the offender is granted pardon. The pardoning power is generally vested in the head of the state such as king, president, and sometimes even in the governor of a state or province.

B. In countries / territories in which death penalty is not applied.
It has been observed that the number of countries in which offenses other than murder are punishable by death is declining, and that the abolition of death penalty does not have the immediate effect of appreciably increasing the incidence of crime.
In some countries such as those in Scandinavia and Latin America, the deterrent effect of death penalty is not demonstrated. However, the trend towards an authoritarian system of criminal law has checked the slow movement towards gradual abolition of death penalty. Consequently, death penalty, especially for political crimes, has reappeared in countries where it had once been abolished.

VI. Conclusion

During the 23rd session of the UN General Assembly, it adopted resolution 2393 (XXIII) inviting all governments of member states of the United Nations to inform the Secretary General of the steps taken concerning the possible abolition of the death penalty. Said UN Resolution is an indication of the collective interest of the international community towards this problem.

According to reports 123 countries, including members of the European Union, have already abolished death penalty. The issue, therefore, of Capital Punishment is not new but it has been studied, discussed and debated long time ago. It is up for member states of the United Nations which have not yet made a firm or final decision on the subject to do it now in pursuance of UN Resolutions on the subject.

As stated earlier, by virtue of the 1987 Constitution, the Philippines has adopted the policy of “abolitionist de jure” with respect to capital punishment. However, Congress may reimpose death penalty if there are compelling reasons involving “heinous crimes”. Consequently in 1993, through Republic Act No. 7659, death penalty was reimposed in the Philippines.

Personally, the author believes that capital punishment should be completely abolished for reasons already stated in this article – sanctity of human life; death penalty has no deterrent effects; and society can protect itself by other means. This could be done by amending the present Constitution and / or passing the necessary legislation. And that is left to the wisdom of Congress and those who may undertake Constitutional amendments or revisions.