The price of capital punishment: What a future with the death penalty may look like

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Reimposing the death penalty in the Philippines comes with a few possible repercussions, including treaty violations, a court battle, and the inevitability of human error. Illustration by CARINA SANTOS

Manila (CNN Philippines Life) — Eleven years ago, the halls of Senate saw its lawmakers vote 16-0 to abolish the death penalty. A similar bill was pending in Congress, with members of the House also overwhelmingly in support of the move to repeal the death penalty law. The term of Gloria Macapagal-Arroyo as president thus saw the demise of a punitive measure that sought to impose death as the supreme penalty, instead of reclusion perpetua or life imprisonment.

On March 7, 2017, during the third and final reading of another bill that seeks to resurrect the capital punishment in the name of President Rodrigo Duterte’s drug war, 217 members of Congress voted “yes” in favor of the death penalty. Fifty-four (54) said no. Only one (1) abstained. The bill has been pared down considerably — covered offenses include only drug-related crimes, not including possession. More death penalty bills, covering offenses such as rape, may come up, says House Speaker Pantaleon Alvarez.

What comes next for the controversial bill is another round of three readings in the Senate, and a possible reconciliation of the two chambers’ versions through a bicameral committee. The president can then either sign or let the bill pass into law. Once in effect, the death penalty law is seen to affect the incidence of drug-related crimes.

When Fidel Ramos was president, the impetus for the reimposition of the death penalty law, similarly, was “due to the alarming upsurge of such crimes.” It was hoped that the measure would deter the commission of further crimes, even though there was no clear showing that this was achieved.

In a country that has seen the re-imposition, abolition, and possible re-imposition (again) of the penalty of death, what can we expect once the death penalty bill passes into law, 11 years after its most recent version was “killed”? Here are a few examples of what a future with the death penalty looks like in the Philippines.

We will have violated the provisions of a global human rights instrument — the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

When the Philippines ratified, and therefore bound itself to the ICCPR in 1986, it was obliged to respect any human being’s inherent right to life, as stated in Article 6 of the treaty. When we additionally ratified the ICCPR’s Second Optional Protocol in 2007 — a complementary instrument drafted with the specific goal of abolishing the death penalty in the territory of any State who is a party to it — we expressly and even more strongly bound ourselves to this obligation.

Echegaray’s execution for raping his 10-year-old stepdaughter was preceded by his plea to declare the death penalty law in effect at that time unconstitutional, arguing (among others) that death is a “cruel, inhuman, and degrading” punishment that violates the Constitution.

Article 1 of the protocol states that “No one within the jurisdiction of a State Party to the present Protocol shall be executed,” and that “Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.”

Even a year before the Philippines ratified the protocol, former president Macapagal-Arroyo’s administration already saw the complete abolition of the death penalty in 2006, anticipating our permanent commitment to our international obligation (thus explaining her “no” vote in the final House reading in 2017).

Notably, the Philippines is not allowed to denounce or withdraw from its obligations in the ICCPR (of which the protocol forms a part), considering the fundamental nature of the rights it protects.

Aside from violating the ICCPR and its Second Optional Protocol, the reimposition of the death penalty may also have adverse economic effects to the country. Some international instruments look into the ratification of major human rights conventions (the ICCPR and its protocols are landmark human rights agreements) as a requisite before granting trade benefits to developing States, such as the Philippines.

The definitions of “heinous crimes” and “compelling reasons” justifying the imposition of the death penalty may be revisited by the Supreme Court.

The death penalty is not absolutely prohibited by the Constitution. It may be reimposed by Congress, only on account of “compelling reasons involving heinous crimes.” In light of rising criminality during the term of President Ramos, the death penalty was reimposed in December 1993, and was carried out through lethal injection. Leo Echegaray was the first to be executed in 1999 under the reimposed death penalty law.

Echegaray’s execution for raping his 10-year-old stepdaughter was preceded by his plea to declare the death penalty law in effect at that time unconstitutional, arguing (among others) that death is a “cruel, inhuman, and degrading” punishment that violates the Constitution. Yet the court denied his last resort to avert the impending punishment of death, which was meted out on February 1999. Six other executions followed.

Echegaray’s final arguments, while unsuccessful, allowed the Supreme Court in People v. Echegaray to discuss at length the rationale of both abolitionists and re-impositionists in respectively opposing and lobbying for the death penalty.

During Senate debates at the time, abolitionists demanded a more rigorous explanation of what constitutes “compelling reasons” justifying the death penalty, and sought to clarify what was meant by “heinous crimes” that would be covered by it.

Among them, Sen. Jose Lina, Jr. argued that for a reason to be compelling enough to justify the penalty, it must be such that “the State has done everything in its command so that it can be justified to use an inhuman punishment called death penalty” — a view that implied that numerous reforms in the justice system may still be made instead of resorting to death to deter wrongdoing.

Leading up to the abolition of the death penalty in 2006, former Chief Justice Artemio Panganiban was quoted as saying that the Supreme Court could have committed a “judicial error” in convicting Echegaray.

Sen. Wigberto Tañada, another abolitionist, requested that clear and specific elements be enumerated as to qualify a crime as “heinous,” as to fully inform an accused person of the crime. He asked: “Are crimes heinous by their nature or elements as they are described in the bill, or are crimes heinous because they are punished by death?”

To that, Sen. Arturo Tolentino, a staunch re-impositionist, replied: “They are heinous by their nature … but that is not supposed to be the exclusive criterion. The nature of the offense is the most important element in considering it heinous but, at the same time, we should consider the relation of the offense to society in order to have a complete idea of the heinous nature of these offenses.”

Later on, Sen. Tolentino would aver to the wisdom of the Supreme Court in deciding what constitutes “compelling reason involving heinous crimes.”

Consequently, the court in Echegaray, seemingly addressing the concerns of senators Lina and Tañada and responding to Tolentino, will explicitly declare that the Constitution only requires “compelling reasons involving heinous crimes” as justification for reimposing the death penalty.

“Nothing in the said provision,” said the court, “imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society.”

As to the heinous nature of crimes, the court attempted to illustrate it this way:

“The elements of heinousness and compulsion are inseparable and are, in fact, interspersed with each other. Because the subject crimes are either so revolting and debasing as to violate the most minimum of the human standards of decency or its effects, repercussions, implications and consequences so destructive, destabilizing, debilitating, or aggravating in the context of our socio-political and economic agenda as a developing nation, these crimes must be frustrated, curtailed and altogether eradicated.”

In a related note, some House representatives, in fact, are also mulling questioning the current death penalty bill in court once it passes, for violating procedural rules.

We will be testing the capacity of our judges to properly mete out the death penalty.

Leading up to the abolition of the death penalty in 2006, former Chief Justice Artemio Panganiban was quoted as saying that the Supreme Court could have committed a “judicial error” in convicting Echegaray.

Prior to 2006, the highest court has already admitted in People v. Mateo the fatal fallibility of some of its judges, stating that 77.71 percent of the decisions tried by lower courts, imposing the death penalty, are either modified or reversed upon review by the highest court. In the case, the Supreme Court even stated the following numbers: Of the 907 cases it reviewed from 1993 to 2004, only 230 (25.36 percent) have been affirmed (or found to have been properly decided by the lower courts). From death, the Supreme Court in fact reduced the penalty to reclusion perpetua in 483 cases (53.25 percent). It also rendered an acquittal in 65 cases.

In sum, the court surmised: during that period, 651 out of 907 individuals were saved from lethal injection, and would have been wrongly punished with the death penalty if not for the review conducted by the Supreme Court.