POLITICS

OPINION: In the death penalty debate, who gets to say who can live and who must die?

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The discussion on death penalty should be guided, as much as possible, not by whims or caprice, but on sound rational and ethical grounds. Illustration by JL JAVIER

Editor’s Note: Ross Tugade, 29, is a lawyer and independent writer. Any opinion stated in this piece is hers.

Manila (CNN Philippines life) — February 05, 1999 was unlike any other Friday. It marked the end of another school week. But for an eight-year old raised on a steady diet of weekday news, it was the day when they finally killed a bad man.

Days leading up to that Friday, I was perhaps too young to fully understand the spectacle surrounding the bad man. All I knew was that he was accused of doing something horrible to his own daughter, and that he would plead everyday through the television, a litany of his innocence to spare his life.

It would later on be clear to me that it was other men who put the bad man to sleep, when these words became etched in my brain, as though an eternal echo: “Pilipino, pinatay ng kapwa Pilipino.” Let his name ring in our collective memory as a nation for all time — he was Leo Echegaray.

A persistent question when it comes to death penalty serves as the moral compass in my own reflections now as a lawyer working in human rights — who gets to say who can live and who must die?

The Echegaray case

Echegaray’s execution was the first in the Philippines since the death penalty’s reinstatement in 1993 through the enactment of Republic Act No. 7659.

People vs. Echegaray, decided by the Supreme Court in 1996, meted out the supreme punishment of death on the accused, charged with raping the minor daughter of his common-law wife. The rape allegedly took place sometime in 1994, when the victim — nicknamed “Baby” by the media — was ten years old.

At the time of conviction, the rape of persons under the age of eighteen committed by a parent or step-parent was among the heinous crimes classified by Congress as punishable by death.

Echegaray challenged the constitutionality of the death penalty law in the Supreme Court, mainly arguing that it violated the constitutional provision on cruel, degrading, and inhumane punishment. The legal challenge also alleged a violation of the Philippines’ obligations under international law.

The Supreme Court denied these arguments. Lethal injection — the prescribed mode for capital punishment — passed constitutional muster. As to the other argument, the Philippines has not yet signed nor ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the death penalty at the time Echegaray raised his legal challenge.

In 2006, Republic Act No. 9346 was signed into law, prohibiting the imposition of capital punishment in the Philippines. On the United Nations’ website on the status of treaties, it can be seen that the following year in 2007, the Philippines ratified the Second Optional Protocol, which says that “all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life.”

Deterrence or retribution?

It is universally certain that rape is a reprehensible crime against the dignity and person of any human being. After Echegaray’s execution, then-President Joseph Estrada said “Let Mr. Echegaray’s death serve as a strong warning against the criminal elements.” From this pronouncement, the State policy then appeared to be that of creating a deterrent against criminality.

Deterrence is one of the recognized utilitarian aims of capital punishment. With the imposition of death penalty, it is expected that would-be criminals will refrain from committing heinous acts, as the State has already made an example of someone’s death. In theory, the severe punishment of a criminal will make similar behavior unlikely.

However, in a recent publication in “The Handbook of Social Control,” Dr. Paul Kaplan, a professor of Criminal Justice in the School of Public Affairs at the San Diego State University, notes that “the deterrent effect of capital punishment is not promising.” For instance, researchers “have not found convincing evidence that executions prevent homicides.”

From President Duterte’s previous pronouncements, however, it would appear that deterrence is not his primary aim in championing the return of death penalty in the Philippines. In June 2016, before assuming office, he stated, “Whether you like to commit a crime or not, that’s not my business. Death penalty to me is the retribution.”

Unlike deterrence, retribution is not a utilitarian — but rather a moral — aim of capital punishment. At this point, formulating a mechanics of death for the sole aim of retribution is, according to Dr. Kaplan, a “philosophically slippery slope concept.”

Framing the debate from the vantage point of the chief executive’s underlying policy reasoning, we run the risk of sinking into deeper moral pitfalls. The discussion on death penalty should be guided, as much as possible, not by whims or caprice, but on sound rational and ethical grounds.

Death penalty debates anew

As of writing, eight bills in total* have been filed in the House of Representatives and the Senate at the beginning of the 18th Congress that propose the reinstatement of the death penalty, mostly for drug-related crimes.

The present legal landscape is different from the time Echegaray challenged the death penalty law. As the Philippines is now a party to the Second Optional Protocol of the ICCPR, it is expected that the question of a breach of international obligation will crop up one way or another. Additionally, the question of whether or not drug-related crimes count as “serious crimes” under international law is to be anticipated.

Beyond the legal arguments that are expected to surround the imposition of the death penalty, the same question demands to be asked: who gets to say who can live and who must die?

In “Deaf Republic,” poet Ilya Kaminsky imagines the story of a society gripped by violence that has gone deaf-mute. They used sign language as a form of dissent. Kaminsky’s lines appeal to the core of rational minds and conscientious hearts, especially around a highly-charged debate on the value of life: “At the trial of God, we will ask: why did you allow all this? And the answer will be an echo: why did you allow all this?”

Before the State takes on the imposition of a punishment as severe as death, it must first consider more urgent reforms in the criminal justice system. The gears of justice, while picking up the pace in the last few years, do not grind fast enough for the ordinary Filipino. Rather than the State populate a death row with bodies up for execution, it must ensure with certitude that a man will pay for his transgression. I echo Leo Echegaray’s lawyer, Theodore Te, in his sentiments: “It is certainty, not severity, of punishment that best deters.”

Is the taking of life necessary to satisfy the demands of justice? Do we teach murder in order to learn the value and dignity of life? Before we raise a society of children who will see death in all its permutations as already commonplace, we must continue to ask these all-important questions.

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*HB00368, HB00741, HB01380, HB01588, HB01806, HB01807, SBN-189, SBN-27