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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 132601

January 19, 1999

LEO ECHEGARAY, petitioner,

vs.
SECRETARY OF JUSTICE, ET AL., respondents.

RESOLUTION

PUNO, J.:

For resolution are public respondents' Urgent Motion for Reconsideration of

the Resolution of this Court dated January 4, 1990 temporarily restraining the
execution of petitioner and Supplemental Motion to Urgent Motion for
Reconsideration. It is the submission of public respondents that:

The Decision in this case having become final and executory, its execution
enters the exclusive ambit of authority of the executive authority. The
issuance of the TRO may be construed as trenching on that sphere of
executive authority;
The issuance of the temporary restraining order . . . creates dangerous
precedent as there will never be an end to litigation because there is always
a possibility that Congress may repeal a law.
Congress had earlier deliberated extensively on the death penalty bill. To be
certain, whatever question may now be raised on the Death Penalty Law
before the present Congress within the 6-month period given by this
Honorable Court had in all probability been fully debated upon . . .
Under the time honored maxim lex futuro, judex praeterito, the law looks
forward while the judge looks at the past, . . . the Honorable Court in issuing
the TRO has transcended its power of judicial review.
At this moment, certain circumstances/supervening events transpired to the
effect that the repeal or modification of the law imposing death penalty has
become nil, to wit:
The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
The resolution of Congressman Golez, et al., that they are against the repeal
of the law;
The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.
In their Supplemental Motion to Urgent Motion for Reconsideration, public
respondents attached a copy of House Resolution No. 629 introduced by
Congressman Golez entitled "Resolution expressing the sense of the House of
Representative to reject any move to review Republic Act No. 7659 which
provided for the re-imposition of death penalty, notifying the Senate, the
Judiciary and the Executive Department of the position of the House of
Representative on this matter, and urging the President to exhaust all means
under the law to immediately implement the death penalty law." The
Resolution was concurred in by one hundred thirteen (113) congressman.

In their Consolidated Comment, petitioner contends: (1) the stay order. . . is

within the scope of judicial power and duty and does not trench on executive
powers nor on congressional prerogatives; (2) the exercise by this Court of its
power to stay execution was reasonable; (3) the Court did not lose jurisdiction
to address incidental matters involved or arising from the petition; (4) public
respondents are estopped from challenging the Court's jurisdiction; and (5)
there is no certainty that the law on capital punishment will not be repealed
or modified until Congress convenes and considers all the various resolutions
and bills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concern
matters that are not incidents in G.R. No. 117472, where the death penalty
was imposed on petitioner on automatic review of his conviction by this
Court. The instant motions were filed in this case, G.R. No. 132601, where the
constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing
rules and regulations was assailed by petitioner. For this reason, the Court in
its Resolution of January 4, 1999 merely noted the Motion to Set Aside of
Rodessa "Baby" R. Echegaray dated January 7, 1999 and Entry of Appearance
of her counsel dated January 5, 1999. Clearly, she has no legal standing to
intervene in the case at bar, let alone the fact that the interest of the State is
properly represented by the Solicitor General.

We shall now resolve the basic issues raised by the public respondents.

First. We do not agree with the sweeping submission of the public

respondents that this Court lost its jurisdiction over the case at bar and hence
can no longer restrain the execution of the petitioner. Obviously, public
respondents are invoking the rule that final judgments can no longer be
altered in accord with the principle that "it is just as important that there
should be a place to end as there should be a place to begin litigation." 1 To
start with, the Court is not changing even a comma of its final Decision. It is
appropriate to examine with precision the metes and bounds of the Decision
of this Court that became final. These metes and bounds are clearly spelled
out in the Entry of Judgment in this case, viz:

ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in the aboveentitled case was filed in this Office, the dispositive part of which reads as
follows:

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the

assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED
insofar as Sections 17 and 19 of the Rules and Regulations to Implement
Republic Act No. 8177 are concerned, which are hereby declared INVALID
because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as
amended by Section 25 of Republic Act No. 7659; and (b) Section 19 fails to
provide for review and approval of the Lethal Injection Manual by the
Secretary of Justice, and unjustifiably makes the manual confidential, hence
unavailable to interested parties including the accused/convict and counsel.
Respondents are hereby enjoined from enforcing and implementing Republic
Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177 are appropriately amended,
revised and/or corrected in accordance with this Decision.

SO ORDERED.

and that the same has, on November 6, 1988 become final and executory
and is hereby recorded in the Book of Entries of Judgment.

Manila, Philippine.

Clerk of Court

By: (SGD) TERESITA G. DIMAISIP

Acting Chief

Judicial Records Office

The records will show that before the Entry of Judgment, the Secretary of
Justice, the Honorable Serafin Cuevas, filed with this Court on October 21,
1998 a Compliance where he submitted the Amended Rules and Regulations
implementing R.A. No. 8177 in compliance with our Decision. On October 28,
1998, Secretary Cuevas submitted a Manifestation informing the Court that
he has caused the publication of the said Amended Rules and Regulations as
required by the Administrative Code. It is crystalline that the Decision of this
Court that became final and unalterable mandated: (1) that R.A. No. 8177 is
not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations
to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be
enforced and implemented until sections 17 and 19 of the Rules and
Regulations to Implement R.A. No. 8177 are amended. It is also daylight clear
that this Decision was not altered a whit by this Court. Contrary to the
submission of the Solicitor General, the rule on finality of judgment cannot
divest this Court of its jurisdiction to execute and enforce the same judgment.
Retired Justice Camilo Quiason synthesized the well established jurisprudence
on this issue as
follows: 2

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the finality of a judgment does not mean that the Court has lost all its powers
nor the case. By the finality of the judgment, what the court loses is its
jurisdiction to amend, modify or alter the same. Even after the judgment has
become final the court retains its jurisdiction to execute and enforce it. 3
There is a difference between the jurisdiction of the court to execute its
judgment and its jurisdiction to amend, modify or alter the same. The former
continues even after the judgment has become final for the purpose of
enforcement of judgment; the latter terminates when the judgment becomes
final. 4 . . . For after the judgment has become final facts and circumstances
may transpire which can render the execution unjust or impossible. 5

In truth, the arguments of the Solicitor General has long been rejected by this
Court. As aptly pointed out by the petitioner, as early as 1915, this Court has
unequivocably ruled in the case of Director of Prisons v. Judge of First
Instance, 6 viz:

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 cannot
change or alter its judgment, as its jurisdiction has terminated . . . 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 of
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 that 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) has performed its ministerial duty of ordering the execution . . . and
its part is ended, if however a circumstance arises that ought to delay the
execution, and there is an imperative duty to investigate the emergency and
to order a postponement. Then the question arises as to whom the
application for postponing the execution ought to be addressed while the
circumstances is under investigation and so to who has jurisdiction to make
the investigation.

The power to control the execution of its decision is an essential aspect of

jurisdiction. It cannot be the subject of substantial subtraction for our
Constitution 7 vests the entirety of judicial power in one Supreme Court and
in such lower courts as may be established by law. To be sure, the important
part of a litigation, whether civil or criminal, is the process of execution of
decisions where supervening events may change the circumstance of the
parties and compel courts to intervene and adjust the rights of the litigants to
prevent unfairness. It is because of these unforseen, supervening
contingencies that courts have been conceded the inherent and necessary
power of control of its processes and orders to make them conformable to law
and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by
law jurisdiction is conferred on a court or judicial officer, all auxiliary writs,
processes and other means necessary to carry it into effect may be employed
by such court or officer and if the procedure to be followed in the exercise of
such jurisdiction is not specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted which appears
conformable to the spirit of said law or rules." It bears repeating that what
the Court restrained temporarily is the execution of its own Decision to give it
reasonable time to check its fairness in light of supervening events in
Congress as alleged by petitioner. The Court, contrary to popular
misimpression, did not restrain the effectivity of a law enacted by
Congress.1wphi1.nt

The more disquieting dimension of the submission of the public respondents

that this Court has no jurisdiction to restrain the execution of petitioner is
that it can diminish the independence of the judiciary. Since the implant of
republicanism in our soil, our courts have been conceded the jurisdiction to
enforce their final decisions. In accord with this unquestioned jurisdiction, this
Court promulgated rules concerning pleading, practice and procedure which,
among others, spelled out the rules on execution of judgments. These rules
are all predicated on the assumption that courts have the inherent, necessary
and incidental power to control and supervise the process of execution of
their decisions. Rule 39 governs execution, satisfaction and effects of
judgments in civil cases. Rule 120 governs judgments in criminal cases. It
should be stressed that the power to promulgate rules of pleading, practice
and procedure was granted by our Constitutions to this Court to enhance its
independence, for in the words of Justice Isagani Cruz "without independence
and integrity, courts will lose that popular trust so essential to the
maintenance of their vigor as champions of justice." 9 Hence, our
Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to

promulgate rules concerning pleading, practice and procedure was granted

but it appeared to be co-existent with legislative power for it was subject to
the power of Congress to repeal, alter or supplement. Thus, its Section 13,
Article VIII provides:

Sec.13.
The Supreme Court shall have the power to promulgate rules
concerning pleading, practice and procedure in all courts, and the admission
to the practice of law. Said rules shall be uniform for all courts of the same
grade and shall not diminish, increase, or modify substantive rights. The
existing laws on pleading, practice and procedure are hereby repealed as
statutes, and are declared Rules of Court, subject to the power of the
Supreme Court to alter and modify the same. The Congress have the power
to repeal, alter or supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the Philippines.

The said power of Congress, however, is not as absolute as it may appear on

its surface. In In re Cunanan 10 Congress in the exercise of its power to
amend rules of the Supreme Court regarding admission to the practice of law,
enacted the Bar Flunkers Act of 1953 11 which considered as a passing
grade, the average of 70% in the bar examinations after July 4, 1946 up to
August 1951 and 71% in the 1952 bar examinations. This Court struck down
the law as unconstitutional. In his ponencia, Mr. Justice Diokno held that " . . .
the disputed law is not a legislation; it is a judgment a judgment
promulgated by this Court during the aforecited years affecting the bar
candidates concerned; and although this Court certainly can revoke these
judgments even now, for justifiable reasons, it is no less certain that only this
Court, and not the legislative nor executive department, that may do so. Any
attempt on the part of these department would be a clear usurpation of its
function, as is the case with the law in question." 12 The venerable jurist
further ruled: "It is obvious, therefore, that the ultimate power to grant
license for the practice of law belongs exclusively to this Court, and the law
passed by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the license." By its
ruling, this Court qualified the absolutist tone of the power of Congress to
"repeal, alter or supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the Philippines.

The ruling of this Court in In re Cunanan was not changed by the 1973
Constitution. For the 1973 Constitution reiterated the power of this Court "to
promulgate rules concerning pleading, practice and procedure in all courts, . .

. which, however, may be repealed, altered or supplemented by the Batasang

Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:

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Sec.5. The Supreme Court shall have the following powers.

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(5)
Promulgate rules concerning pleading, practice, and procedure in all
courts, the admission to the practice of law, and the integration of the Bar,
which, however, may be repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights.

Well worth noting is that the 1973 Constitution further strengthened the
independence of the judiciary by giving to it the additional power to
promulgate rules governing the integration of the Bar. 13

The 1987 Constitution molded an even stronger and more independent

judiciary. Among others, it enhanced the rule making power of this Court. Its
Section 5(5), Article VIII provides:

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Sec. 5.

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The Supreme Court shall have the following powers:

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(5)
Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts, the
admission to the practice of law, the Integrated Bar, and legal assistance to
the underprivileged. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-judicial bodies shall
remain effective unless disapproved by the Supreme Court.

The rule making power of this Court was expanded. This Court for the first
time was given the power to promulgate rules concerning the protection and
enforcement of constitutional rights. The Court was also granted for the first
time the power to disapprove rules of procedure of special courts and quasijudicial bodies. But most importantly, the 1987 Constitution took away the
power of Congress to repeal, alter, or supplement rules concerning pleading,
practice and procedure. In fine, the power to promulgate rules of pleading,
practice and procedure is no longer shared by this Court with Congress, more
so with the Executive. If the manifest intent of the 1987 Constitution is to
strengthen the independence of the judiciary, it is inutile to urge, as public
respondents do, that this Court has no jurisdiction to control the process of
execution of its decisions, a power conceded to it and which it has exercised
since time immemorial.

To be sure, it is too late in the day for public respondents to assail the
jurisdiction of this Court to control and supervise the implementation of its
decision in the case at bar. As aforestated, our Decision became final and
executory on November 6, 1998. The records reveal that after November 6,
1998, or on December 8, 1998, no less than the Secretary of Justice
recognized the jurisdiction of this Court by filing a Manifestation and Urgent
Motion to compel the trial judge, the Honorable Thelma A. Ponferrada, RTC,
Br. 104, Quezon City to provide him ". . . a certified true copy of the Warrant
of Execution dated November 17, 1998 bearing the designated execution day
of death convict Leo Echegaray and allow (him) to reveal or announce the
contents thereof, particularly the execution date fixed by such trial court to
the public when requested." The relevant portions of the Manifestation and
Urgent Motion filed by the Secretary of Justice beseeching this Court "to
provide the appropriate relief" state:

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5.
Instead of filing a comment on Judge Ponferrada's Manifestation
however, herein respondent is submitting the instant Manifestation and
Motion (a) to stress, inter alia, that the non-disclosure of the date of
execution deprives herein respondent of vital information necessary for the
exercise of his statutory powers, as well as renders nugatory the
constitutional guarantee that recognizes the people's right to information of
public concern, and (b) to ask this Honorable Court to provide the appropriate
relief.

6.
The non-disclosure of the date of execution deprives herein respondent
of vital information necessary for the exercise of his power of supervision and
control over the Bureau of Corrections pursuant to Section 39, Chapter 8,
Book IV of the Administrative Code of 1987, in relation to Title III, Book IV of
such Administrative Code, insofar as the enforcement of Republic Act No.
8177 and the Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to it that
laws and rules relative to the execution of sentence are faithfully observed.

7.
On the other hand, the willful omission to reveal the information about
the precise day of execution limits the exercise by the President of executive
clemency powers pursuant to Section 19, Article VII (Executive Department)
of the 1987 Philippine Constitution and Article 81 of the Revised Penal Code,
as amended, which provides that the death sentence shall be carried out
"without prejudice to the exercise by the President of his executive powers at
all times." (Emphasis supplied) For instance, the President cannot grant
reprieve, i.e., postpone the execution of a sentence to a day certain (People
v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a precise date to reckon
with. The exercise of such clemency power, at this time, might even work to
the prejudice of the convict and defeat the purpose of the Constitution and
the applicable statute as when the date at execution set by the President
would be earlier than that designated by the court.

8.
Moreover, the deliberate non-disclosure of information about the date
of execution to herein respondent and the public violates Section 7, Article III
(Bill of Rights) and Section 28, Article II (Declaration of Principles and State
Policies) of the 1987 Philippine Constitution which read:

Sec. 7.
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to documents and
papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development shall, be
afforded the citizen, subject to such limitations as may be provided by law.

Sec. 28.
Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all transactions
involving public interest.

9.
The "right to information" provision is self-executing. It supplies "the
rules by means of which the right to information may be enjoyed (Cooley, A
Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing the
right and mandating the duty to afford access to sources of information.
Hence, the fundamental right therein recognized may be asserted by the
people upon the ratification of the Constitution without need for any ancillary
act of the Legislature (Id., at p. 165) What may be provided for by the
Legislature are reasonable conditions and limitations upon the access to be
afforded which must, of necessity, be consistent with the declared State
policy of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized that
whatever limitation may be prescribed by the Legislature, the right and the
duty under Art. III, Sec. 7 have become operative and enforceable by virtue of
the adoption of the New Charter." (Decision of the Supreme Court En Banc in
Legaspi v. Civil Service Commission, 150 SCRA 530, 534-535 [1987].

The same motion to compel Judge Ponferrada to reveal the date of execution
of petitioner Echegaray was filed by his counsel, Atty. Theodore Te, on
December 7, 1998. He invoked his client's right to due process and the
public's right to information. The Solicitor General, as counsel for public
respondents, did not oppose petitioner's motion on the ground that this Court
has no more jurisdiction over the process of execution of Echegaray. This
Court granted the relief prayed for by the Secretary of Justice and by the
counsel of the petitioner in its Resolution of December 15, 1998. There was
not a whimper of protest from the public respondents and they are now
estopped from contending that this Court has lost its jurisdiction to grant said
relief. The jurisdiction of this Court does not depend on the convenience of
litigants.

II

Second. We likewise reject the public respondents' contention that the

"decision in this case having become final and executory, its execution enters
the exclusive ambit of authority of the executive department . . .. By granting
the TRO, the Honorable Court has in effect granted reprieve which is an
executive function." 14 Public respondents cite as their authority for this
proposition, Section 19, Article VII of the Constitution which reads:

Except in cases of impeachment, or as otherwise provided in this

Constitution, the President may grant reprieves, commutations, and pardons,
and remit fines and forfeitures after conviction by final judgment. He shall
also have the power to grant amnesty with the concurrence of a majority of
all the members of the Congress.

The text and tone of this provision will not yield to the interpretation
suggested by the public respondents. The provision is simply the source of
power of the President to grant reprieves, commutations, and pardons and
remit fines and forfeitures after conviction by final judgment. It also provides
the authority for the President to grant amnesty with the concurrence of a
majority of all the members of the Congress. The provision, however, cannot
be interpreted as denying the power of courts to control the enforcement of
their decisions after their finality. In truth, an accused who has been
convicted by final judgment still possesses collateral rights and these rights
can be claimed in the appropriate courts. For instance, a death convict who
become insane after his final conviction cannot be executed while in a state
of insanity. 15 As observed by Antieau, "today, it is generally assumed that
due process of law will prevent the government from executing the death
sentence upon a person who is insane at the time of execution." 16 The
suspension of such a death sentence is undisputably an exercise of judicial
power. It is not a usurpation of the presidential power of reprieve though its
effects is the same the temporary suspension of the execution of the death
convict. In the same vein, it cannot be denied that Congress can at any time
amend R.A. No. 7659 by reducing the penalty of death to life imprisonment.
The effect of such an amendment is like that of commutation of sentence. But
by no stretch of the imagination can the exercise by Congress of its plenary
power to amend laws be considered as a violation of the power of the
President to commute final sentences of conviction. The powers of the
Executive, the Legislative and the Judiciary to save the life of a death convict
do not exclude each other for the simple reason that there is no higher right

than the right to life. Indeed, in various States in the United States, laws have
even been enacted expressly granting courts the power to suspend execution
of convicts and their constitutionality has been upheld over arguments that
they infringe upon the power of the President to grant reprieves. For the
public respondents therefore to contend that only the Executive can protect
the right to life of an accused after his final conviction is to violate the
principle of co-equal and coordinate powers of the three branches of our
government.

III

Third. The Court's resolution temporarily restraining the execution of

petitioner must be put in its proper perspective as it has been grievously
distorted especially by those who make a living by vilifying courts. Petitioner
filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at
about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has
been set on January 4, the first working day of 1999; (b) that members of
Congress had either sought for his executive clemency and/or review or
repeal of the law authorizing capital punishment; (b.1) that Senator Aquilino
Pimentel's resolution asking that clemency be granted to the petitioner and
that capital punishment be reviewed has been concurred by thirteen (13)
other senators; (b.2) Senate President Marcelo Fernan and Senator Miriam S.
Defensor have publicly declared they would seek a review of the death
penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital
punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35)
other congressmen are demanding review of the same law.

When the Very Urgent Motion was filed, the Court was already in its
traditional recess and would only resume session on January 18, 1999. Even
then, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on
January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent
Motion. The Court hardly had five (5) hours to resolve petitioner's motion as
he was due to be executed at 3 p.m. Thus, the Court had the difficult problem
of resolving whether petitioner's allegations about the moves in Congress to
repeal or amend the Death Penalty Law are mere speculations or not. To the
Court's majority, there were good reasons why the Court should not
immediately dismiss petitioner's allegations as mere speculations and
surmises. They noted that petitioner's allegations were made in a pleading
under oath and were widely publicized in the print and broadcast media. It
was also of judicial notice that the 11th Congress is a new Congress and has

no less than one hundred thirty (130) new members whose views on capital
punishment are still unexpressed. The present Congress is therefore different
from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and
the Lethal Injection Law (R.A. No. 8177). In contrast, the Court's minority felt
that petitioner's allegations lacked clear factual bases. There was hardly a
time to verify petitioner's allegations as his execution was set at 3 p.m. And
verification from Congress was impossible as Congress was not in session.
Given these constraints, the Court's majority did not rush to judgment but
took an extremely cautious stance by temporarily restraining the execution of
petitioner. The suspension was temporary "until June 15, 1999, coeval with
the constitutional duration of the present regular session of Congress, unless
it sooner becomes certain that no repeal or modification of the law is going to
be made." The extreme caution taken by the Court was compelled, among
others, by the fear that any error of the Court in not stopping the execution of
the petitioner will preclude any further relief for all rights stop at the
graveyard. As life was at, stake, the Court refused to constitutionalize haste
and the hysteria of some partisans. The Court's majority felt it needed the
certainty that the legislature will not petitioner as alleged by his counsel. It
was believed that law and equitable considerations demand no less before
allowing the State to take the life of one its citizens.

The temporary restraining order of this Court has produced its desired result,
i.e., the crystallization of the issue whether Congress is disposed to review
capital punishment. The public respondents, thru the Solicitor General, cite
posterior events that negate beyond doubt the possibility that Congress will
repeal or amend the death penalty law. He names these supervening events
as follows:

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The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
The resolution of Congressman Golez, et al., that they are against the repeal
of the law;
The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel. 18
In their Supplemental Motion to Urgent Motion for Reconsideration, the
Solicitor General cited House Resolution No. 629 introduced by Congressman

Golez entitled "Resolution expressing the sense of the House of

Representatives to reject any move to review R.A. No. 7659 which provided
for the reimposition of death penalty, notifying the Senate, the Judiciary and
the Executive Department of the position of the House of Representative on
this matter and urging the President to exhaust all means under the law to
immediately implement the death penalty law." The Golez resolution was
signed by 113 congressman as of January 11, 1999. In a marathon session
yesterday that extended up 3 o'clock in the morning, the House of
Representative with minor, the House of Representative with minor
amendments formally adopted the Golez resolution by an overwhelming vote.
House Resolution No. 25 expressed the sentiment that the House ". . . does
not desire at this time to review Republic Act 7659." In addition, the President
has stated that he will not request Congress to ratify the Second Protocol in
review of the prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its legal
and humanitarian purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the
question of capital punishment had been the subject of endless discussion
and will probably never be settled so long as men believe in punishment." 19
In our clime and time when heinous crimes continue to be unchecked, the
debate on the legal and moral predicates of capital punishment has been
regrettably blurred by emotionalism because of the unfaltering faith of the
pro and anti-death partisans on the right and righteousness of their
postulates. To be sure, any debate, even if it is no more than an exchange of
epithets is healthy in a democracy. But when the debate deteriorates to
discord due to the overuse of words that wound, when anger threatens to
turn the majority rule to tyranny, it is the especial duty of this Court to assure
that the guarantees of the Bill of Rights to the minority fully hold. As Justice
Brennan reminds us ". . . it is the very purpose of the Constitution and
particularly the Bill of Rights to declare certain values transcendent,
beyond the reach of temporary political majorities." 20 Man has yet to invent
a better hatchery of justice than the courts. It is a hatchery where justice will
bloom only when we can prevent the roots of reason to be blown away by the
winds of rage. The flame of the rule of law cannot be ignited by rage,
especially the rage of the mob which is the mother of unfairness. The
business of courts in rendering justice is to be fair and they can pass their
litmus test only when they can be fair to him who is momentarily the most
hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion
for Reconsideration and Supplemental Motion to Urgent Motion for
Reconsideration and lifts the Temporary Restraining Order issued in its
Resolution of January 4, 1999.

The Court also orders respondent trial court judge (Hon. Thelma A.
Ponferrada, Regional Trial Court, Quezon City, Branch 104) to set anew the
date for execution of the convict/petitioner in accordance with applicable
provisions of law and the Rules of Court, without further delay.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez,

Quisumbing, Purisima and Pardo, JJ., concur.

Vitug and Panganiban, JJ., Please see Separate Opinion.

Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions

VITUG, J., separate opinion;

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 and 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 abovenumbered 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 after 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 . . ..

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 . . .."
If, indeed, it would be futile to yet expect any chance for a timely 3 reexamination 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.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has
jurisdiction to issue the disputed Temporary Restraining Order (TRO) on
January 4, 1999. I will not repeat its well-reasoned disquisition. I write only to
explain my vote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repeal or
amend RA 7659 during its current session which ends on June 15, 1999 and
that, in any event, the President will veto any such repeal or amendment, the

TRO should by its own terms be deemed lifted now. However, my objections
to the imposition of the death penalty transcend the TRO and permeate its
juridical essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional

insofar as some parts thereof prescribing the capital penalty fail to comply
with the requirements of "heinousness" and "compelling reasons" prescribed
by the Constitution of the Philippines. * This I have repeatedly stated in my
Dissenting Opinion in various death cases decided by the Court, as well as
during the Court's deliberation on this matter on January 4, 1999. For easy
reference, I hereby attach a copy of my Dissent promulgated on February 7,
1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean

the upholding and enforcement of law (or the relevant portions thereof)
which, I submit with all due respect, is unconstitutional and therefore legally
nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal
Injection Law) is likewise unconstitutional since it merely prescribes the
manner in which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will
abide by the ruling of the Court that both RA 7659 and RA 8177 are
constitutional and that death penalty should, by majority vote, be
implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for
Reconsideration.

G.R. No. 117472

February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed
by his newly-retained counsel, 2 the accused raises for the first time a very
crucial ground for his defense: that Republic Act. No. 7659, the law
reimposing the death penalty, is unconstitutional. In the Brief and (original
Motion for Reconsideration filed by his previous counsel, 3 this transcendental
issue was nor brought up. Hence, it was not passed upon by this Court in its
Decision affirming the trial court's sentence of death. 4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) 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. (Emphasis supplied)

The second and third sentences of the above provision are new and had not
been written in the 1935, 1973 or even in the 1986 "Freedom Constitution."
They proscribe the imposition 5 of the death penalty "unless for compelling
reasons involving heinous crimes, Congress provides for it," and reduced "any
death penalty already imposed" to reclusion perpetua. The provision has both
a prospective aspect (it bars the future imposition of the penalty) and a
retroactive one (it reduces imposed capital sentences to the lesser penalty of
imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not
merely suspend the imposition of the death penalty, but in fact completely
abolished it from the statute books. The automatic commutation or reduction

to reclusion perpetua of any death penalty extant as of the effectivity of the

Constitution clearly recognizes that, while the conviction of an accused for a
capital crime remains, death as a penalty ceased to exist in our penal laws
and thus may longer be carried out. This is the clear intent of the framers of
our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he majority voted for the
constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom

delegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thus
clear that when Fr. Bernas sponsored the provision regarding the nonimposition of the death penalty, what he had in mind was the total abolition
and removal from the statute books of the death penalty. This became the
intent of the frames of the Constitution when they approved the provision
and made it a part of the Bill of Rights." With such abolition as a premise,
restoration thereof becomes an exception to a constitutional mandate. Being
an exception and thus in derogation of the Constitution, it must then be
strictly construed against the State and liberally in favor of the people. 8 In
this light, RA 7659 enjoys no presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death
penalty from the then existing statutes but (2) authorized Congress to restore
it at some future time to enable or empower courts to reimpose it on
condition that it (Congress) 9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward" 10):
the authority of Congress to "provide for it" is not absolute. Rather, it is
strictly limited:

by "compelling reasons" that may arise after the Constitution became

effective; and
to crimes which Congress should identify or define or characterize as
"heinous."

The Constitution inexorably placed upon Congress the burden of determining

the existence of "compelling reasons" and of defining what crimes are
"heinous" before it could exercise its law-making prerogative to restore the
death penalty. For clarity's sake, may I emphasize that Congress, by law;
prescribes the death penalty on certain crimes; and courts, by their decisions,
impose it on individual offenders found guilty beyond reasonable doubt of
committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11

to "provide for it" (the death penalty) (1) by amending certain provisions of
the Revised Penal Code; 12 (2) by incorporating a new article therein; 13 and
(3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated
in the Penal Code and in the special laws. It merely made the penalty more
severe. Neither did its provisions (other than the preamble, which was cast in
general terms) discuss or justify the reasons for the more sever sanction,
either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the
death penalty had been imposed until February 2, 1987, when the
Constitution took effect as follows: (1) a person is convicted of a capital
offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the
limited authority granted it by the Constitution? More legally put: It reviving
the death penalty, did Congress act with grave abuse of discretion or in
excess of the very limited power or jurisdiction conferred on it by Art. III, Sec.
19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe

the death penalty ONLY to "heinous" crimes, it did not define or characterize
the meaning of "heinous". Neither did Congress. As already stated, RA 7659

itself merely selected some existing crimes for which it prescribed death as
an applicable penalty. It did not give a standard or a characterization by
which courts may be able to appreciate the heinousness of a crime. I concede
that Congress was only too well aware of its constitutionally limited power. In
deference thereto, it included a paragraph in the preambular or "whereas"
clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for
being grievous, odious and hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient

definition or characterization of what a heinous crime is. It simply and
gratuitously declared certain crimes to be "heinous" without adequately
justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be
determined. Calling the crimes "grievous, odious and hateful" is not a
substitute for an objective juridical definition. Neither is the description
"inherent or manifest wickedness, viciousness, atrocity and perversity."
Describing blood as blue does not detract from its being crimson in fact; and
renaming gumamela as rose will not arm it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an

introduction to show its intent or purposes. It cannot be the origin of rights
and obligations. Where the meaning of a statute is clear and unambiguous,
the preamble can neither expand nor restrict its operation, much less prevail
over its text. 15 In this case, it cannot be the authoritative source to show
compliance with the Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe

death as the maximum imposable penalty once the court appreciates the
presence or absence of aggravating circumstances. 16

In other words, it just reinstated capital punishment for crimes which were
already punishable with death prior to the effectivity of the 1987 Constitution.

With the possible exception of plunder and qualified bribery, 17 no new

crimes were introduced by RA 7659. The offenses punished by death under
said law were already to punishable by the Revised Penal Code 18 and by
special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen.
Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19

So we did not go that far from the Revised Penal Code, Mr. President, and
from existing special laws which, before abolition of the death penalty, had
already death as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which

were already penalized with death prior to the charter's effectivity, Congress I
submit has not fulfilled its specific and positive constitutional duty. If the
Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article
III into the fundamental law. But the stubborn fact is it did. Verily, the
intention to 1) delete the death penalty from our criminal laws and 2) make
its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the
charter debates on this matter.

The critical phrase "unless for compelling reasons involving heinous crimes"
was an amendment introduced by Comm. Christian Monsod. In explaining
what possible crimes could qualify as heinous, he and Comm. Jose Suarez
agreed on "organized murder" or "brutal murder of a rape victim". 20 Note
that the honorable commissioners did not just say "murder" but organized
murder; not just rape but brutal murder of a rape victim. While the debates
were admittedly rather scanty, I believe that the available information shows
that, when deliberating on "heinousness", the Constitutional Commission did
not have in mind the offenses already existing and already penalized with
death. I also believe that the heinousness clause requires that:

the crimes should be entirely new offenses, the elements of which have an
inherent quality, degree or level of perversity, depravity or viciousness
unheard of until then; or

even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or
the means or method by which the crime, whether new or old, is carried out
evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity,
viciousness as to demonstrate its heinousness. 21
For this purpose, Congress could enact an entirely new set of circumstances
to qualify the crime as "heinous", in the same manner that the presence of
treachery in a homicide aggravates the crime to murder for which a heavier
penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the

Constitution also directs Congress to determine "compelling reasons" for the
revival of the capital penalty. It is true that paragraphs 3 and 4 of the
preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be
remembered that every word or phrase in the Constitution is sacred and
should never be ignored, cavalierly-treated or brushed aside. Thus, I believe
that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and
separately.

The words "compelling reasons" were included in the Charter because, in the
words of Comm. Monsod, "in the future, circumstances may arise which we
should not preclude today . . . and that the conditions and the situation
(during the deliberations of the Constitutional Commission) might change for
very specific reasons" requiring the return of the constitutionally-abhorred
penalty.

In his sponsorship of House Bill No. 62 which later evolved into RA 7659,
Congressman Pablo Garcia, in answer to questions raised by Representative
Edcel Lagman tried to explain these compelling reasons: 23

MR. LAGMAN:

So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.).

The worsening peace and order condition in the country,
Mr. Speaker. That is one.

MR. LAGMAN.
So the compelling reason which the distinguished sponsor
would like to justify or serve as an anchor for the justification of the
reimposition of the death penalty is the alleged worsening peace and order
situation. The Gentleman claims that is one the compelling reasons. But
before we dissent this particular "compelling reason," may we know what are
the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.)

Justice, Mr. Speaker.

MR. LAGMAN.

Justice.

MR. GARCIA (P.).

Yes, Mr. Speaker.

MR. LAGMAN.
Justice is a compelling reason, Mr. Speaker? Could the
Gentleman kindly elaborate on that answer? Why is justice a compelling
reason as if justice was not obtained at the time the Constitution abolished
the death penalty? Any compelling reason should be a supervening
circumstances after 1987.

MR. GARCIA (P.).

Mr. Speaker, I have repeatedly said again and again that if
one lives in an organized society governed by law, justice demands that
crime be punished and that the penalty imposed be commensurate with the
offense committed.

MR. LAGMAN.
The Gentleman would agree with me that when the
Constitution speaks of the compelling reasons to justify the reimposition of
death penalty, it refers to reasons which would supervene or come after the
approval of the 1987 Constitution. Is he submitting that justice, in his own
concept of a commensurate penalty for the offense committed, was not

obtained in 1987 when the Constitution abolished the death penalty and the
people ratified it?

MR. GARCIA (P.).

That is precisely why we are saying that now, under
present conditions, because of the seriousness of the offenses being
committed at this time, justice demands that the appropriate penalty must be
meted out for those who have committed heinous crimes.

xxx

xxx

xxx

In short, Congressman Garcia invoked the preambular justifications of

"worsening peace and order" and "justice". With all due respect I submit that
these grounds are not "compelling" enough to justify the revival of statedecreed deaths. In fact, I dare say that these "reasons" were even nonexistent. Statistics from the Philippine National Police show that the crime
volume and crime rate particularly on those legislated capital offenses did not
worsen but in fact declined between 1987, the date when the Constitution
took effect, and 1993, the year when RA 7659 was enacted. Witness the
following debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN.

Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the
volume of the crime of murder in 1987?

MR. GARCIA (P.).

The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN.

So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.).

Yes, Mr. Speaker.

MR. LAGMAN.
That was in 1987, Mr. Speaker, could the distinguished
chairman inform us the volume of murder in 1988?

MR. GARCIA (P.).

It was 10,521, Mr. Speaker.

MR. LAGMAN.
Or it was a reduction from 12,305 in 1987 to 10,521 in
1988. Correspondingly, the crime rate in the very year after the abolition of
the death penalty was reduced from 21 percent to 18 percent. Is that correct,
Mr. Speaker?

MR. GARCIA (P.).

That is correct, Mr. Speaker. Those are the statistics
supplied by the PC.

MR. LAGMAN.
Now can we go again to 1987 when the Constitution
abolished the death penalty? May we know from the distinguished Gentleman
the volume of robbery in 1987?

MR. GARCIA (P.).

Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN.

No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.).

percent.

It was 22,942, Mr. Speaker, and the crime rate was 40

MR. LAGMAN.
This was the year immediately after the abolition of the
death penalty. Could the Gentleman tell us the volume of robbery cases in
1988?

MR. GARCIA (P.).

It was 16,926, Mr. Speaker.

MR. LAGMAN.
Obviously, the Gentleman would agree with me. Mr.
Speaker that the volume of robbery cases declined from 22,942 in 1987 or
crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would the
Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.).

This is what the statistics say, I understand we are reading
now from the same document.

MR. LAGMAN.
Now, going to homicide, the volume 1987 was 12,870 or a
crime rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of
19 percent. Would the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.).

As I Said, Mr. Speaker, we are reading from the same
document and I would not want to say that the Gentleman is misreading the
document that I have here.

MR. LAGMAN.

But would the Gentleman confirm that?

MR. GARCIA (P.).

The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures
on the number of persons arrested in regard to drug-related offenses in the
year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 this was the year when the death penalty was
abolished the persons arrested in drug-related cases were 3,062, and the
figure dropped to 2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in

1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in
1991.

But in 1987, when the death penalty was abolished, as far as the drug-related
cases are concerned, the figure continued a downward trend, and there was
no death penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death

penalty argue that its reimposition "would pose as an effective deterrent
against heinous crimes." 26 However no statistical data, no sufficient proof,
empirical or otherwise, have been submitted to show with any conclusiveness
the relationship between the prescription of the death penalty for certain
offenses and the commission or non-commission thereof. This is a theory that
can be debated on and on, 27 in the same manner that another proposition
that the real deterrent to crime is the certainty of immediate arrest,
prosecution and conviction of the culprit without unnecessary risk, expense
and inconvenience to the victim, his heirs or his witnesses can be argued
indefinitely. 28 This debate can last till the academics grow weary of the
spoken word, but it would not lessen the constitutionally-imposed burden of
Congress to act within the "heinousness" and "compelling reasons" limits of
its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty
is included in our Bill of Rights. As such, it should like any other guarantee
in favor of the accused be zealously protected, 29 and any exception
thereto meticulously screened. Any doubt should be resolved in favor of the
people, particularly where the right pertains to persons accused of crimes. 30
Here the issue is not just crimes but capital crimes!

So too, all our previous Constitutions, including the first one ordained at
Malolos, guarantee that "(n)o person shall be deprived of life, liberty or
property without due process of law." 31 This primary right of the people to
enjoy life life at its fullest, life in dignity and honor is not only reiterated
by the 1987 Charter but is in fact fortified by its other pro-life and pro-human
rights provisions. Hence, the Constitution values the dignity of every human
person and guarantees full respect for human rights, 32 expressly prohibits
any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the
mother and the unborn from the moment of conception 34 and establishes
the people's rights to health, a balanced ecology and education. 35

This Constitutional explosion of concern for man more than property for
people more than the state, and for life more than mere existence augurs
well for the strict application of the constitutional limits against the revival of
death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech.
assembly and even religion. But the most basic and most important of these
rights is the right to life. Without life, the other rights cease in their
enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that
the death penalty militates against the poor, the powerless and the
marginalized. The "Profile of 165 Death Row Convicts" submitted by the Free
Legal Assistance Group 36 highlights this sad fact:

Since the reimposition of the death penalty, 186 persons 37 have been
sentenced to death. At the end of 1994, there were 24 death penalty
convicts, at the end of 1995, the number rose to 90; an average of seven (7)
convicts per month; double the monthly average of capital sentences
imposed the prior year. From January to June 1996, the number of death
penalty convicts reached 72, an average of 12 convicts per month, almost
double the monthly average of capital sentences imposed in 1995.
Of the 165 convicts polled, approximately twenty one percent (21%) earn
between P200 to P2,900 monthly; while approximately twenty seven percent
(27%) earn between P3,000 to P3,999 monthly. Those earning above P4,000

monthly are exceedingly few: seven percent (7%) earn between P4,000 to
P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent
(7%) earn between P6,000 to P6,999, those earning between P7,000 to
P15,000 comprise only four percent (4%), those earning P15,000 and above
only one percent (1%). Approximately thirteen percent (13%) earn nothing at
all, while approximately two percent (2%) earn subsistence wages with
another five percent (5%) earning variable income. Approximately nine
percent (9%) do not know how much they earn in a month.
Thus, approximately two-thirds of the convicts, about 112 of them, earn
below the government-mandated minimum monthly wage of P4,290; ten (10)
of these earn below the official poverty line set by government. Twenty six
(26) earn between P4,500.00 and P11,0000.00 monthly, indicating they
belong to the middle class; only one (1) earns P30.000.00 monthly. Nine (9)
convicts earn variable income or earn on a percentage or allowance basis;
fifteen (15) convicts do not know or are unsure of their monthly income.
Twenty two (22) convicts earn nothing at all.
In terms of occupation, approximately twenty one percent (21%) are
agricultural workers or workers in animal husbandry; of these thirty (30), or
almost one-fifth thereof, are farmers. Thirty five percent (35%) are in the
transport and construction industry, with thirty one (31) construction workers
or workers in allied fields (carpentry, painting, welding) while twenty seven
(27) are transport workers (delivery, dispatcher, mechanic, tire man, truck
helper) with sixteen (16) of them drivers. Eighteen percent (18%) are in
clerical, sales and service industries, with fourteen (14) sales workers
(engaged in buy and sell or fish, cigarette or rice vendors), twelve (12)
service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks
(janitors, MERALCO employee and clerk) About four percent (4%) are
government workers, with six (6) persons belonging to the armed services
(AFP, PNP and even CAFGU). Professionals, administrative employee and
executives comprise only three percent (3%), nine percent (9%) are
unemployed.
None of the DRC's use English as their medium of communication. About forty
four percent (44%), or slightly less than half speak and understand Tagalog;
twenty six percent (26%), or about one-fourth, speak and understand
Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo,
Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national
and speaks and understand Niponggo.
Approximately twelve percent (12%) graduated from college, about forty
seven percent (47%) finished varying levels of elementary education with
twenty seven (27) graduating from elementary. About thirty five percent

(35%), fifty eight (58) convicts, finished varying levels of high school, with
more than half of them graduating from high school. Two (2) convicts finished
vocational education; nine (9) convicts did not study at all.
The foregoing profile based on age, language and socio-economic situations
sufficiently demonstrates that RA 7659 has militated against the poor and the
powerless in society those who cannot afford the legal services necessary
in capital crimes, where extensive preparation, investigation, research and
presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality
was woefully omitted in the proceedings in the trial court and even before
this Court until the Free legal Assistance Group belatedly brought it up in the
Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and
written in a strange, incomprehensible language. Worse still, judicial
proceedings are themselves complicated, intimidating and damning. The net
effect of having a death penalty that is imposed more often than not upon
the impecunious is to engender in the minds of the latter, a sense
unfounded, to be sure, but unhealthy nevertheless of the unequal balance
of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in

particular, the statistics above-cited, are in a very real sense prone to be
misleading, and that regardless of the socio-economic profile of the DRCs, the
law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it
in another way, as far as the disadvantaged are concerned, the law would still
be complex and written in a strange and incomprehensible language, and
judicial proceedings complicated and intimidating, whether the ultimate
penalty involved be life (sentence) or death. Another aspect of the whole
controversy is that, whatever the penalties set by law, it seems to me that
there will always be certain class or classes of people in our society who, by
reason of their poverty, lack of educational attainment and employment
opportunities, are consequently confined to living, working and subsisting in
less-than-ideal environments, amidst less-than-genteel neighbors similarly
situated as themselves, and are therefore inherently more prone to be
involved (as victims or perpetrators) in vices, violence and crime. So from
that perspective, the law reviving the death penalty neither improves nor
worsens their lot substantially. Or, to be more precise, such law may even be

said to help improve their situation (at least in theory) by posing a much
stronger deterrent to the commission of heinous crimes.

However, such a viewpoint simply ignores the very basic differences that
exist in the situations of the poor and the non-poor. Precisely because the
underprivileged are what they are, they require and deserve a greater degree
of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered
to rise above themselves and their situation. The basic postulates for such a
position are, I think, simply that everyone ultimately wants to better himself
and that we cannot better ourselves individually to any significant degree if
we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this
law that effectively inflicts the ultimate punishment on none other than the
poor and disadvantaged in the greater majority of cases, and which penalty,
being so obviously final and so irreversibly permanent, erases all hope of
reform, of change for the better. This law, I submit, has no place in our legal,
judicial and constitutional firmament.

Epilogue

In sum, I respectfully submit that:

(1)
The 1987 Constitution abolished the death penalty from our statute
books. It did not merely suspend or prohibit its imposition.

(2)
The Charter effectively granted a new right: the constitution right
against the death penalty, which is really a species of the right to life.

(3)
Any law reviving the capital penalty must be strictly construed against
the State and liberally in favor of the accused because such a stature
denigrates the Constitution, impinges on a basic right and tends to deny
equal justice to the underprivileged.

(4)
Every word or phrase in the Constitution is sacred and should never be
ignored, cavalierly-treated or brushed aside.

(5)
Congressional power death is severely limited by two concurrent
requirements:

First, Congress must provide a set of attendant circumstances which the

prosecution must prove beyond reasonable doubt, apart from the elements of
the crime and itself. Congress must explain why and how these
circumstances define or characterize the crime as "heinous".

Second, Congress has also the duty of laying out clear and specific reasons
which arose after the effectivity of the Constitution compelling the enactment
of the law. It bears repeating that these requirements are inseparable. They
must both be present in view of the specific constitutional mandate "for
compelling reasons involving heinous crimes." The compelling reason must
flow from the heinous nature of the offense.
(6)
In every law reviving the capital penalty, the heinousness and
compelling reasons must be set out for each and every crime, and not just for
all crimes generally and collectively.

"Thou shall not kill" is fundamental commandment to all Christians, as well as

to the rest of the "sovereign Filipino people" who believe in Almighty God. 38
While the Catholic Church, to which the vast majority of our people belong,
acknowledges the power of public authorities to prescribe the death penalty,
it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A
Hymn to Life), 40 "punishment must be carefully evaluated and decided
upon, and ought not to go to the extreme of executing the offender except in
cases of absolute necessity: in other words, when it would not be possible
otherwise to defend society . . . (which is) very rare, if not practically nonexistent."

Although not absolutely banning it, both the Constitution and the Church
indubitably abhor the death penalty. Both are pro-people and pro-life. Both
clearly recognize the primacy of human life over and above even the state
which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling
reasons involving heinous crimes" just as the Church grudgingly permits it
only reasons of "absolute necessity" involving crimes of "extreme gravity",
which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has the Congress, in enacting RA
7659, amply discharged its constitutional burden of proving the existence of
"compelling reasons" to prescribe death against well-defined "heinous"
crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially

the Supplemental Motion for Reconsideration and to modify the dispositive
portion of the decision of the trial court by deleting the words "DEATH", as
provided for under RA 7659," and substitute therefore reclusion perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the

penalty of death for the crimes mentioned in its text.

Separate Opinions
VITUG, J., separate opinion;

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 and 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 abovenumbered 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 after 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 . . ..

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 . . .."

If, indeed, it would be futile to yet expect any chance for a timely 3 reexamination 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.

PANGANIBAN, J., separate opinion;

I agree with the Court's Resolution that, without doubt, this Court has
jurisdiction to issue the disputed Temporary Restraining Order (TRO) on
January 4, 1999. I will not repeat its well-reasoned disquisition. I write only to
explain my vote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repeal or
amend RA 7659 during its current session which ends on June 15, 1999 and
that, in any event, the President will veto any such repeal or amendment, the
TRO should by its own terms be deemed lifted now. However, my objections
to the imposition of the death penalty transcend the TRO and permeate its
juridical essence.

I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional

insofar as some parts thereof prescribing the capital penalty fail to comply
with the requirements of "heinousness" and "compelling reasons" prescribed
by the Constitution of the Philippines. * This I have repeatedly stated in my
Dissenting Opinion in various death cases decided by the Court, as well as
during the Court's deliberation on this matter on January 4, 1999. For easy

reference, I hereby attach a copy of my Dissent promulgated on February 7,

1997.

Consequently, I cannot now vote to lift TRO, because to do so would mean

the upholding and enforcement of law (or the relevant portions thereof)
which, I submit with all due respect, is unconstitutional and therefore legally
nonexistent. I also reiterate that, in my humble opinion, RA 8177 (the Lethal
Injection Law) is likewise unconstitutional since it merely prescribes the
manner in which RA 7659 ( the Death Penalty Law) is to implemented.

Having said that, I stress, however, that I defer to the rule of law and will
abide by the ruling of the Court that both RA 7659 and RA 8177 are
constitutional and that death penalty should, by majority vote, be
implemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for
Reconsideration.

G.R. No. 117472

February 7, 1997

PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.

Supplemental Motion for Reconsideration

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed
by his newly-retained counsel, 2 the accused raises for the first time a very
crucial ground for his defense: that Republic Act. No. 7659, the law

reimposing the death penalty, is unconstitutional. In the Brief and (original

Motion for Reconsideration filed by his previous counsel, 3 this transcendental
issue was nor brought up. Hence, it was not passed upon by this Court in its
Decision affirming the trial court's sentence of death. 4

The Constitution Abolished Death Penalty

Sec. 19, Article III of the 1987 Constitution provides:

Sec. 19. (1) 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. (Emphasis supplied)

The second and third sentences of the above provision are new and had not
been written in the 1935, 1973 or even in the 1986 "Freedom Constitution."
They proscribe the imposition 5 of the death penalty "unless for compelling
reasons involving heinous crimes, Congress provides for it," and reduced "any
death penalty already imposed" to reclusion perpetua. The provision has both
a prospective aspect (it bars the future imposition of the penalty) and a
retroactive one (it reduces imposed capital sentences to the lesser penalty of
imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did not
merely suspend the imposition of the death penalty, but in fact completely
abolished it from the statute books. The automatic commutation or reduction
to reclusion perpetua of any death penalty extant as of the effectivity of the
Constitution clearly recognizes that, while the conviction of an accused for a
capital crime remains, death as a penalty ceased to exist in our penal laws
and thus may longer be carried out. This is the clear intent of the framers of
our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he majority voted for the
constitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concom

delegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thus

clear that when Fr. Bernas sponsored the provision regarding the nonimposition of the death penalty, what he had in mind was the total abolition
and removal from the statute books of the death penalty. This became the
intent of the frames of the Constitution when they approved the provision
and made it a part of the Bill of Rights." With such abolition as a premise,
restoration thereof becomes an exception to a constitutional mandate. Being
an exception and thus in derogation of the Constitution, it must then be
strictly construed against the State and liberally in favor of the people. 8 In
this light, RA 7659 enjoys no presumption of constitutionality.

The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed the death
penalty from the then existing statutes but (2) authorized Congress to restore
it at some future time to enable or empower courts to reimpose it on
condition that it (Congress) 9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward" 10):
the authority of Congress to "provide for it" is not absolute. Rather, it is
strictly limited:

by "compelling reasons" that may arise after the Constitution became

effective; and
to crimes which Congress should identify or define or characterize as
"heinous."
The Constitution inexorably placed upon Congress the burden of determining
the existence of "compelling reasons" and of defining what crimes are
"heinous" before it could exercise its law-making prerogative to restore the
death penalty. For clarity's sake, may I emphasize that Congress, by law;
prescribes the death penalty on certain crimes; and courts, by their decisions,
impose it on individual offenders found guilty beyond reasonable doubt of
committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA

7659 11 to "provide for it" (the death penalty) (1) by amending certain
provisions of the Revised Penal Code; 12 (2) by incorporating a new article
therein; 13 and (3) by amending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimes stated
in the Penal Code and in the special laws. It merely made the penalty more
severe. Neither did its provisions (other than the preamble, which was cast in
general terms) discuss or justify the reasons for the more sever sanction,
either collectively for all the offenses or individually for each of them.

Generally, it merely reinstated the concept of and the method by which the
death penalty had been imposed until February 2, 1987, when the
Constitution took effect as follows: (1) a person is convicted of a capital
offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed the
limited authority granted it by the Constitution? More legally put: It reviving
the death penalty, did Congress act with grave abuse of discretion or in
excess of the very limited power or jurisdiction conferred on it by Art. III, Sec.
19? The answer, I respectfully submit, is YES.

Heinous Crimes

To repeal, while he Constitution limited the power of Congress to prescribe

the death penalty ONLY to "heinous" crimes, it did not define or characterize
the meaning of "heinous". Neither did Congress. As already stated, RA 7659
itself merely selected some existing crimes for which it prescribed death as
an applicable penalty. It did not give a standard or a characterization by
which courts may be able to appreciate the heinousness of a crime. I concede
that Congress was only too well aware of its constitutionally limited power. In
deference thereto, it included a paragraph in the preambular or "whereas"
clauses of RA 7659, as follows:

WHEREAS, the crimes punishable by death under this Act are heinous for
being grievous, odious and hateful offenses and which, by reason of their

inherent or manifest wickedness, viciousness, atrocity and perversity are

repugnant and outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society.

In my humble view, however, the foregoing clause is clearly an insufficient

definition or characterization of what a heinous crime is. It simply and
gratuitously declared certain crimes to be "heinous" without adequately
justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be
determined. Calling the crimes "grievous, odious and hateful" is not a
substitute for an objective juridical definition. Neither is the description
"inherent or manifest wickedness, viciousness, atrocity and perversity."
Describing blood as blue does not detract from its being crimson in fact; and
renaming gumamela as rose will not arm it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely an

introduction to show its intent or purposes. It cannot be the origin of rights
and obligations. Where the meaning of a statute is clear and unambiguous,
the preamble can neither expand nor restrict its operation, much less prevail
over its text. 15 In this case, it cannot be the authoritative source to show
compliance with the Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe

death as the maximum imposable penalty once the court appreciates the
presence or absence of aggravating circumstances. 16

In other words, it just reinstated capital punishment for crimes which were
already punishable with death prior to the effectivity of the 1987 Constitution.
With the possible exception of plunder and qualified bribery, 17 no new
crimes were introduced by RA 7659. The offenses punished by death under
said law were already to punishable by the Revised Penal Code 18 and by
special laws.

During the debate on Senate Bill No. 891 which later became RA 7659, Sen.
Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19

So we did not go that far from the Revised Penal Code, Mr. President, and
from existing special laws which, before abolition of the death penalty, had
already death as the maximum penalty.

By merely reimposing capital punishment on the very same crimes which

were already penalized with death prior to the charter's effectivity, Congress I
submit has not fulfilled its specific and positive constitutional duty. If the
Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article
III into the fundamental law. But the stubborn fact is it did. Verily, the
intention to 1) delete the death penalty from our criminal laws and 2) make
its restoration possible only under and subject to stringent conditions is
evident not only from the language of the Constitution but also from the
charter debates on this matter.

The critical phrase "unless for compelling reasons involving heinous crimes"
was an amendment introduced by Comm. Christian Monsod. In explaining
what possible crimes could qualify as heinous, he and Comm. Jose Suarez
agreed on "organized murder" or "brutal murder of a rape victim". 20 Note
that the honorable commissioners did not just say "murder" but organized
murder; not just rape but brutal murder of a rape victim. While the debates
were admittedly rather scanty, I believe that the available information shows
that, when deliberating on "heinousness", the Constitutional Commission did
not have in mind the offenses already existing and already penalized with
death. I also believe that the heinousness clause requires that:

the crimes should be entirely new offenses, the elements of which have an
inherent quality, degree or level of perversity, depravity or viciousness
unheard of until then; or
even existing crimes, provided some new element or essential ingredient like
"organized" or "brutal" is added to show their utter perversity, odiousness or
malevolence; or
3)
the means or method by which the crime, whether new or old, is
carried out evinces a degree or magnitude of extreme violence, evil, cruelty,
atrocity, viciousness as to demonstrate its heinousness. 21

For this purpose, Congress could enact an entirely new set of circumstances
to qualify the crime as "heinous", in the same manner that the presence of
treachery in a homicide aggravates the crime to murder for which a heavier
penalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the

Constitution also directs Congress to determine "compelling reasons" for the
revival of the capital penalty. It is true that paragraphs 3 and 4 of the
preamble of RA 7659 22 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It should be
remembered that every word or phrase in the Constitution is sacred and
should never be ignored, cavalierly-treated or brushed aside. Thus, I believe
that the compelling reasons and the characterization of heinousness cannot
be done wholesale but must shown for each and every crime, individually and
separately.

The words "compelling reasons" were included in the Charter because, in the
words of Comm. Monsod, "in the future, circumstances may arise which we
should not preclude today . . . and that the conditions and the situation
(during the deliberations of the Constitutional Commission) might change for
very specific reasons" requiring the return of the constitutionally-abhorred
penalty.

In his sponsorship of House Bill No. 62 which later evolved into RA 7659,
Congressman Pablo Garcia, in answer to questions raised by Representative
Edcel Lagman tried to explain these compelling reasons: 23

MR. LAGMAN:

So what are the compelling reasons now, Mr. Speaker? . . .

MR. GARCIA (P.).

The worsening peace and order condition in the country,
Mr. Speaker. That is one.

MR. LAGMAN.
So the compelling reason which the distinguished sponsor
would like to justify or serve as an anchor for the justification of the
reimposition of the death penalty is the alleged worsening peace and order
situation. The Gentleman claims that is one the compelling reasons. But
before we dissent this particular "compelling reason," may we know what are
the other compelling reasons, Mr. Speaker?

MR. GARCIA (P.)

Justice, Mr. Speaker.

MR. LAGMAN.

Justice.

MR. GARCIA (P.).

Yes, Mr. Speaker.

MR. LAGMAN.
Justice is a compelling reason, Mr. Speaker? Could the
Gentleman kindly elaborate on that answer? Why is justice a compelling
reason as if justice was not obtained at the time the Constitution abolished
the death penalty? Any compelling reason should be a supervening
circumstances after 1987.

MR. GARCIA (P.).

Mr. Speaker, I have repeatedly said again and again that if
one lives in an organized society governed by law, justice demands that
crime be punished and that the penalty imposed be commensurate with the
offense committed.

MR. LAGMAN.
The Gentleman would agree with me that when the
Constitution speaks of the compelling reasons to justify the reimposition of
death penalty, it refers to reasons which would supervene or come after the
approval of the 1987 Constitution. Is he submitting that justice, in his own
concept of a commensurate penalty for the offense committed, was not
obtained in 1987 when the Constitution abolished the death penalty and the
people ratified it?

MR. GARCIA (P.).

That is precisely why we are saying that now, under
present conditions, because of the seriousness of the offenses being

committed at this time, justice demands that the appropriate penalty must be
meted out for those who have committed heinous crimes.

xxx

xxx

xxx

In short, Congressman Garcia invoked the preambular justifications of

"worsening peace and order" and "justice". With all due respect I submit that
these grounds are not "compelling" enough to justify the revival of statedecreed deaths. In fact, I dare say that these "reasons" were even nonexistent. Statistics from the Philippine National Police show that the crime
volume and crime rate particularly on those legislated capital offenses did not
worsen but in fact declined between 1987, the date when the Constitution
took effect, and 1993, the year when RA 7659 was enacted. Witness the
following debate 24 also between Representatives Garcia and Lagman:

MR. LAGMAN.

Very good, Mr. Speaker.

Now, can we go to 1987. Could the Gentleman from Cebu inform us the
volume of the crime of murder in 1987?

MR. GARCIA (P.).

The volume of the crime of murder in 1987 is 12,305.

MR. LAGMAN.

So, the corresponding crime rate was 21 percent.

MR. GARCIA (P.).

Yes, Mr. Speaker.

MR. LAGMAN.
That was in 1987, Mr. Speaker, could the distinguished
chairman inform us the volume of murder in 1988?

MR. GARCIA (P.).

It was 10,521, Mr. Speaker.

MR. LAGMAN.
Or it was a reduction from 12,305 in 1987 to 10,521 in
1988. Correspondingly, the crime rate in the very year after the abolition of
the death penalty was reduced from 21 percent to 18 percent. Is that correct,
Mr. Speaker?

MR. GARCIA (P.).

That is correct, Mr. Speaker. Those are the statistics
supplied by the PC.

MR. LAGMAN.
Now can we go again to 1987 when the Constitution
abolished the death penalty? May we know from the distinguished Gentleman
the volume of robbery in 1987?

MR. GARCIA (P.).

Will the Gentleman state the figure? I will confirm it.

MR. LAGMAN.

No, Mr. Speaker, I am asking the question.

MR. GARCIA (P.).

percent.

It was 22,942, Mr. Speaker, and the crime rate was 40

MR. LAGMAN.
This was the year immediately after the abolition of the
death penalty. Could the Gentleman tell us the volume of robbery cases in
1988?

MR. GARCIA (P.).

It was 16,926, Mr. Speaker.

MR. LAGMAN.
Obviously, the Gentleman would agree with me. Mr.
Speaker that the volume of robbery cases declined from 22,942 in 1987 or
crime rate of 40 percent to 16,926 or a crime rate of 29 percent. Would the
Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.).

This is what the statistics say, I understand we are reading
now from the same document.

MR. LAGMAN.
Now, going to homicide, the volume 1987 was 12,870 or a
crime rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of
19 percent. Would the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.).

As I Said, Mr. Speaker, we are reading from the same
document and I would not want to say that the Gentleman is misreading the
document that I have here.

MR. LAGMAN.

But would the Gentleman confirm that?

MR. GARCIA (P.).

The document speaks for itself.

When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures
on the number of persons arrested in regard to drug-related offenses in the
year 1987 as compared to 1991: 25

Let me cite this concrete statistics by the Dangerous Drug Board.

In 1987 this was the year when the death penalty was abolished the
persons arrested in drug-related cases were 3,062, and the figure dropped to
2,686 in 1988.

By the way, I will furnish my Colleagues with a photocopy of this report.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in

1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in
1991.

But in 1987, when the death penalty was abolished, as far as the drug-related
cases are concerned, the figure continued a downward trend, and there was
no death penalty in this time from, 1988 to 1991.

In a further attempt to show compelling reasons, the proponents of the death

penalty argue that its reimposition "would pose as an effective deterrent
against heinous crimes." 26 However no statistical data, no sufficient proof,
empirical or otherwise, have been submitted to show with any conclusiveness
the relationship between the prescription of the death penalty for certain
offenses and the commission or non-commission thereof. This is a theory that
can be debated on and on, 27 in the same manner that another proposition
that the real deterrent to crime is the certainty of immediate arrest,
prosecution and conviction of the culprit without unnecessary risk, expense
and inconvenience to the victim, his heirs or his witnesses can be argued
indefinitely. 28 This debate can last till the academics grow weary of the
spoken word, but it would not lessen the constitutionally-imposed burden of
Congress to act within the "heinousness" and "compelling reasons" limits of
its death-prescribing power.

Other Constitutional Rights

Militate Against RA 7659

It should be emphasized that the constitutional ban against the death penalty
is included in our Bill of Rights. As such, it should like any other guarantee
in favor of the accused be zealously protected, 29 and any exception
thereto meticulously screened. Any doubt should be resolved in favor of the
people, particularly where the right pertains to persons accused of crimes. 30
Here the issue is not just crimes but capital crimes!

So too, all our previous Constitutions, including the first one ordained at
Malolos, guarantee that "(n)o person shall be deprived of life, liberty or
property without due process of law." 31 This primary right of the people to
enjoy life life at its fullest, life in dignity and honor is not only reiterated
by the 1987 Charter but is in fact fortified by its other pro-life and pro-human
rights provisions. Hence, the Constitution values the dignity of every human
person and guarantees full respect for human rights, 32 expressly prohibits

any form of torture 33 which is arguably a lesser penalty than death,

emphasizes the individual right to life by giving protection to the life of the
mother and the unborn from the moment of conception 34 and establishes
the people's rights to health, a balanced ecology and education. 35

This Constitutional explosion of concern for man more than property for
people more than the state, and for life more than mere existence augurs
well for the strict application of the constitutional limits against the revival of
death penalty as the final and irreversible exaction of society against its
perceived enemies.

Indeed, volumes have been written about individual rights to free speech.
assembly and even religion. But the most basic and most important of these
rights is the right to life. Without life, the other rights cease in their
enjoyment, utility and expression.

This opinion would not be complete without a word on the wrenching fact that
the death penalty militates against the poor, the powerless and the
marginalized. The "Profile of 165 Death Row Convicts" submitted by the Free
Legal Assistance Group 36 highlights this sad fact:

Since the reimposition of the death penalty, 186 persons 37 have been
sentenced to death. At the end of 1994, there were 24 death penalty
convicts, at the end of 1995, the number rose to 90; an average of seven (7)
convicts per month; double the monthly average of capital sentences
imposed the prior year. From January to June 1996, the number of death
penalty convicts reached 72, an average of 12 convicts per month, almost
double the monthly average of capital sentences imposed in 1995.
Of the 165 convicts polled, approximately twenty one percent (21%) earn
between P200 to P2,900 monthly; while approximately twenty seven percent
(27%) earn between P3,000 to P3,999 monthly. Those earning above P4,000
monthly are exceedingly few: seven percent (7%) earn between P4,000 to
P4,999, four percent (4%) earn between P5,000 to P5,999, seven percent
(7%) earn between P6,000 to P6,999, those earning between P7,000 to
P15,000 comprise only four percent (4%), those earning P15,000 and above
only one percent (1%). Approximately thirteen percent (13%) earn nothing at
all, while approximately two percent (2%) earn subsistence wages with

another five percent (5%) earning variable income. Approximately nine

percent (9%) do not know how much they earn in a month.
Thus, approximately two-thirds of the convicts, about 112 of them, earn
below the government-mandated minimum monthly wage of P4,290; ten (10)
of these earn below the official poverty line set by government. Twenty six
(26) earn between P4,500.00 and P11,0000.00 monthly, indicating they
belong to the middle class; only one (1) earns P30.000.00 monthly. Nine (9)
convicts earn variable income or earn on a percentage or allowance basis;
fifteen (15) convicts do not know or are unsure of their monthly income.
Twenty two (22) convicts earn nothing at all.
In terms of occupation, approximately twenty one percent (21%) are
agricultural workers or workers in animal husbandry; of these thirty (30), or
almost one-fifth thereof, are farmers. Thirty five percent (35%) are in the
transport and construction industry, with thirty one (31) construction workers
or workers in allied fields (carpentry, painting, welding) while twenty seven
(27) are transport workers (delivery, dispatcher, mechanic, tire man, truck
helper) with sixteen (16) of them drivers. Eighteen percent (18%) are in
clerical, sales and service industries, with fourteen (14) sales workers
(engaged in buy and sell or fish, cigarette or rice vendors), twelve (12)
service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks
(janitors, MERALCO employee and clerk) About four percent (4%) are
government workers, with six (6) persons belonging to the armed services
(AFP, PNP and even CAFGU). Professionals, administrative employee and
executives comprise only three percent (3%), nine percent (9%) are
unemployed.
None of the DRC's use English as their medium of communication. About forty
four percent (44%), or slightly less than half speak and understand Tagalog;
twenty six percent (26%), or about one-fourth, speak and understand
Cebuano. The rest speak and understand Bicolano, Ilocano, Ilonggo,
Kapampangan, Pangasinense and Waray. One (1) convict is a foreign national
and speaks and understand Niponggo.
Approximately twelve percent (12%) graduated from college, about forty
seven percent (47%) finished varying levels of elementary education with
twenty seven (27) graduating from elementary. About thirty five percent
(35%), fifty eight (58) convicts, finished varying levels of high school, with
more than half of them graduating from high school. Two (2) convicts finished
vocational education; nine (9) convicts did not study at all.
The foregoing profile based on age, language and socio-economic situations
sufficiently demonstrates that RA 7659 has militated against the poor and the

powerless in society those who cannot afford the legal services necessary
in capital crimes, where extensive preparation, investigation, research and
presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality
was woefully omitted in the proceedings in the trial court and even before
this Court until the Free legal Assistance Group belatedly brought it up in the
Supplemental Motion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex and
written in a strange, incomprehensible language. Worse still, judicial
proceedings are themselves complicated, intimidating and damning. The net
effect of having a death penalty that is imposed more often than not upon
the impecunious is to engender in the minds of the latter, a sense
unfounded, to be sure, but unhealthy nevertheless of the unequal balance
of the scales of justice.

Most assuredly, it may be contended that the foregoing arguments, and in

particular, the statistics above-cited, are in a very real sense prone to be
misleading, and that regardless of the socio-economic profile of the DRCs, the
law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it
in another way, as far as the disadvantaged are concerned, the law would still
be complex and written in a strange and incomprehensible language, and
judicial proceedings complicated and intimidating, whether the ultimate
penalty involved be life (sentence) or death. Another aspect of the whole
controversy is that, whatever the penalties set by law, it seems to me that
there will always be certain class or classes of people in our society who, by
reason of their poverty, lack of educational attainment and employment
opportunities, are consequently confined to living, working and subsisting in
less-than-ideal environments, amidst less-than-genteel neighbors similarly
situated as themselves, and are therefore inherently more prone to be
involved (as victims or perpetrators) in vices, violence and crime. So from
that perspective, the law reviving the death penalty neither improves nor
worsens their lot substantially. Or, to be more precise, such law may even be
said to help improve their situation (at least in theory) by posing a much
stronger deterrent to the commission of heinous crimes.

However, such a viewpoint simply ignores the very basic differences that
exist in the situations of the poor and the non-poor. Precisely because the
underprivileged are what they are, they require and deserve a greater degree

of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered
to rise above themselves and their situation. The basic postulates for such a
position are, I think, simply that everyone ultimately wants to better himself
and that we cannot better ourselves individually to any significant degree if
we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this
law that effectively inflicts the ultimate punishment on none other than the
poor and disadvantaged in the greater majority of cases, and which penalty,
being so obviously final and so irreversibly permanent, erases all hope of
reform, of change for the better. This law, I submit, has no place in our legal,
judicial and constitutional firmament.

Epilogue

In sum, I respectfully submit that:

The 1987 Constitution abolished the death penalty from our statute books. It
did not merely suspend or prohibit its imposition.
The Charter effectively granted a new right: the constitution right against the
death penalty, which is really a species of the right to life.
Any law reviving the capital penalty must be strictly construed against the
State and liberally in favor of the accused because such a stature denigrates
the Constitution, impinges on a basic right and tends to deny equal justice to
the underprivileged.
Every word or phrase in the Constitution is sacred and should never be
ignored, cavalierly-treated or brushed aside.
Congressional power death is severely limited by two concurrent
requirements:

First, Congress must provide a set of attendant circumstances which the

prosecution must prove beyond reasonable doubt, apart from the elements of
the crime and itself. Congress must explain why and how these
circumstances define or characterize the crime as "heinous".

Second, Congress has also the duty of laying out clear and specific reasons
which arose after the effectivity of the Constitution compelling the enactment
of the law. It bears repeating that these requirements are inseparable. They
must both be present in view of the specific constitutional mandate "for
compelling reasons involving heinous crimes." The compelling reason must
flow from the heinous nature of the offense.

In every law reviving the capital penalty, the heinousness and compelling
reasons must be set out for each and every crime, and not just for all crimes
generally and collectively.
"Thou shall not kill" is fundamental commandment to all Christians, as well as
to the rest of the "sovereign Filipino people" who believe in Almighty God. 38
While the Catholic Church, to which the vast majority of our people belong,
acknowledges the power of public authorities to prescribe the death penalty,
it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A
Hymn to Life), 40 "punishment must be carefully evaluated and decided
upon, and ought not to go to the extreme of executing the offender except in
cases of absolute necessity: in other words, when it would not be possible
otherwise to defend society . . . (which is) very rare, if not practically nonexistent."

Although not absolutely banning it, both the Constitution and the Church
indubitably abhor the death penalty. Both are pro-people and pro-life. Both
clearly recognize the primacy of human life over and above even the state
which man created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for "compelling
reasons involving heinous crimes" just as the Church grudgingly permits it
only reasons of "absolute necessity" involving crimes of "extreme gravity",
which are very rare and practically non-existent.

In the face of these evident truisms, I ask: Has the Congress, in enacting RA
7659, amply discharged its constitutional burden of proving the existence of
"compelling reasons" to prescribe death against well-defined "heinous"
crimes?

I respectfully submit it has not.

WHEREFORE, the premises considered, I respectfully vote to grant partially

the Supplemental Motion for Reconsideration and to modify the dispositive
portion of the decision of the trial court by deleting the words "DEATH", as
provided for under RA 7659," and substitute therefore reclusion perpetua.

I further vote to declare RA 7659 unconstitutional insofar as it prescribes the

penalty of death for the crimes mentioned in its text.

Footnotes
1
Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104
[1938].

Philippine Courts and their Jurisdiction, p. 13, 1998 ed.

3
Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230;
American Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71
SCRA 426; Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and
Industrial Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712;
Mindanao Portland Cement Corp. v. Laquihan, 120 SCRA 930.

4
Ibid., at pp. 12-14, citing Miranda v. Tiangco, 96 Phil. 526; Santos v.
Acuna, 63 O.G. 358; Cabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno
Industrial and Development Corp. v. Encaje, 104 SCRA 388.

5
Ibid., pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co.
v. McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu
v. Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v.
Cleofas, 67 Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113
Phil. 636; De los Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza,
66 SCRA 174.

29 Phil. 267 (1915), p. 270.

Sec. 1, Article VIII of the 1987 Constitution.

Sec. 5(f), Rule 135.

Philippine Political Law, p. 225, 1993 ed.

10

94 Phil. 534 (1954), pp. 550-555.

11

R.A. No. 372.

12

94 Phil. 550, p. 551.

13
See In re Integration of the Bar of the Philippines, January 9, 1973, 49
SCRA 22.

14

See pp. 3-4 of Urgent Motion for Reconsideration.

15

See Art. 79 of the Revised Penal Code.

16
Modern Constitutional Law, Vol. 1, p. 409, 1969 ed., citing Caritativo v.
California, 357 US 549, 21 L ed. 2d 1531, 78 S. Ct. 1263 [1958].

17
December 30 and 31, 1998 were declared holidays. January 1, 1999
was an official holiday. January 2 was a Saturday and January 3 was a Sunday.

18

Urgent Motion for Reconsideration of Public respondents, p. 8.

19

Darrow, Crime: Its Cause and Treatment, p. 166 (1922).

20

Eisler, A Justice For All, p. 268.

21
"Where personal liberty is involved, a democratic society employs a
different arithmetic and insists that it is less important to reach an
unshakable decision than to do justice." Pollack, Proposals to Curtail Habeas
Corpus for State Prisoners: Collateral Attack on the Great Writ. 66 Yale LJ 50,
65 (1956).

VITUG, J., separate opinion;

1
Candelana vs. Caizares, 4 SCRA 738; Philippine Veterans Bank vs.
Intermediate Appellate Court, 178 SCRA 545, Lipana vs. 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.

29 Phil 267.

At least for Mr. Echegaray.

G.R. No 124329, 14 December 1998.

PANGANIBAN, J., separate opinion;

*
I have further explained my unflinching position on this matter in my
recent book Battles in the Supreme Court, particularly on page 58 to 84.

Separate opinion;

1
It is called "Supplemental" because there was a (main) Motion for
Reconsideration filed by the previous counsel of the accused, which this Court
already denied.

2
The Anti Death Penalty Task Force of the Free Legal Assistance Group
Pablito V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa,
Eduardo R. Abaya and Ma. Victoria I. Diokno filed its Notice of Appearance
dated August 22, 1996 only on August 23, 1996, after the Per Curiam
Decision of this Court was promulgated on June 25, 1996.

Atty. Julian R. Vitug, Jr.

4
The bulk of jurisprudence precludes raising an issue for the first time
only on appeal. See, for instance, Manila Bay Club Corporation vs. Court of
Appeals, 249 SCRA 303, October 13, 1995; Manila Bay Club Corporation vs.
Court of Appeals, 245 SCRA 715, July 11, 1995; Securities and Exchange
Commission vs. Court of Appeals, 246 SCRA 738, July 21, 1995. However, the
Court resolved to tackle the question of constitutionality of Republic Act No.
7659 in this case, anticipating that the same question would be raised
anyway in many other subsequent instances. The Court resolved to
determine and dispose of the issue once and for all, at the first opportunity.
To let the issue pass unresolved just because it was raised after the
promulgation of the decision affirming conviction may result in grave
injustice.

5
In People vs. Muoz, 170 SCRA 107, February 9, 1989, the Court, prior
to the enactment and effectivity of RA 7659, ruled by a vote of 9-6 (J. Cruz,
ponente, C.J. Fernan, JJ., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin,
Grio-Aquino and Medialdea, concurring) that the death penalty was not
abolished but only prohibited from imposed. But see also the persuasive
Dissenting Opinion of Mme. Justice Ameurfina Melencio-Herrera (joined by JJ.
Narvasa, Paras, Sarmiento, Cortes and Regalado) who contended that the
Constitution totally abolished the death penalty and removed it form the
statute books. People vs. Muoz reversed the earlier "abolition" doctrine
uniformly held in People vs. Gavarra, 155 SCRA 327, October 30, 1987, (per

C.J. Yap); People vs. Masangkay, 155 SCRA 113, October 27, 1987, (per J.
Melencio-Herrera) and People vs. Atencio, 156 SCRA 242, December 10, 1987
(per C.J. Narvasa). It is time that these cases are revisited by this Court.

6
This quote is taken from I Record of the Constitutional Commission, p.
676 (July 17, 1986) as follows:

Fr. Bernas:

xxx

xxx

xxx

My recollection on this is that there was a division in the Committee not on

whether the death penalty should be abolished or not, but rather on whether
the abolition should be done by the Constitution in which case it cannot be
restored by the legislature or left to the legislature. The majority voted for
the constitutional abolition of the death penalty. And the reason is that capital
punishment is inhuman for the convict and his family who are traumatized by
the waiting, even if it is never carried out. There is no evidence that death
penalty deterred deadly criminals, hence, life should not be destroyed just in
the hope that other lives might be saved. Assuming mastery over the life of
another man is just too presumptuous for any man. The fact that the death
penalty as an institution has been there from time immemorial should not
deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So basically, this is the summary of
the reason which were presented in support of the constitutional abolition of
the death penalty (emphasis supplied)

Dissenting Opinion in People vs. Muoz, supra, p. 129.

8
Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held
that a statute which allows an exception to a constitutional right (against
warrantless arrests) should be strictly construed.

9
In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus
curiae in People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996),
vigorously argues that RA 7659 has validly restored the death penalty which
may now be imposed provided that the prosecution proves, and the court is
convinced, that (a) the accused is guilty of a crime designated by RA 7659 as
capital, (b) whose commission is accompanied by aggravating circumstances
as defined by Arts. 14 and 15 of the Revised Penal Code, (c) the
accompanying aggravating circumstance must be one which can be
characterized by the court as making the crime "heinous", and (d) that the
execution of the offender is demanded by "compelling reasons" related to the
offense. In other words, according to him, it is the courts not Congress
that have responsibility of determining the heinousness of a crime and the
compelling reason for its imposition upon a particular offender, depending on
the facts of each case. I cannot however subscribe to this view. The
Constitution clearly identifies Congress as the sovereign entity which is given
the onus of fulfilling these two constitutional limitations.

10

People vs. Muoz, supra, p. 121.

11
Which became effective on December 31, 1993, per People vs. Burgos,
234 SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676,
December 6, 1995; People vs. Albert, 251 SCRA 136, December 11, 1995.

12

Art. 114 Treason; Art. 123 Qualified Piracy; Art. 246 Parricide;

Art. 248 Murder; Art. 255 Infanticide; Art. 267 Kidnapping and Serious
Illegal Detention; Art. 294 Robbery with violence against or intimidation of
persons; Art. 320 Destructive Arson; Art. 335 Rape.

13

Art. 221-A on Qualified Bribery.

14

Sec. 2, RA 7080 Plunder; Secs. 3, 4, 5, 7, 8 and 9 of Article II of

RA 6425 Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA
6425 Carnapping.

15
A preamble is not an essential part of a statute. (Agpalo, Statutory
Construction, Second Edition 1990; Martin, Statutory Construction, Sixth
Edition, 1984). The function of the preamble is to supply reasons and
explanation and not to confer power or determine rights. Hence it cannot be
given the effect of enlarging the scope or effect of a statute. (C. Dallas Sands,
Statutes and Statutory Construction, Fourth Edition, Volume LA, 20.03).

16
Under Sec. 11, RA 7659, it appears that death is the mandatory
penalty for rape, regardless of the presence or absence of aggravating or
mitigating circumstances, "(w)hen by reason or on the occasion of the rape, a
homicide is committed," or when it is "committed with any of the attendant
circumstances enumerated" in said section.

17
While in plunder and qualified bribery are "new" capital offenses, RA
7659 nonetheless fails to justify why they are considered heinous. In addition,
the specific compelling reasons for the prescribed penalty of death are note
laid out by the statute.

18
In the case of rape, RA 7659 provided certain attendant circumstances
which the prosecution must prove before courts can impose the extreme
penalty. Just the same however, the law did not explain why said
circumstances would make the crimes heinous. Neither did it set forth the
complelling reasons therefor.

19
Record of the Senate, First Regular Session, January 18 to March 11,
1993, Volume III, No. 48, January 25, 1993, p. 122.

20

I Record of the Constitutional Commission, July 18, 1986, pp. 742-743:

MR. SUAREZ The Gentleman advisedly used the words 'heinous crimes',
whatever is the pronunciation. Will the Gentleman give examples of 'heinous
crimes'? For example, would the head of an organized syndicate in dope
distribution or dope smuggling fall within the qualification of a heinous
offender such as to preclude the application of the principle of abolition of
death penalty?

MR. MONSOD
Yes, Madam President. That is one of the possible crimes
that would qualify for a heinous crime. Another would be organized murder. In
other words, yesterday there were many arguments for and against, and they
all had merit. But in the contemporary society, we recognize the sacredness
of human life and I think it was Honorable Laurel who said this yesterday
it is only God who gives and takes life. However, the voice of the people is
also the voice of God, and we cannot presume to have the wisdom of the
ages. Therefore, it is entirely possible in the future that circumstances may
arise which we should not preclude today. We know that this is very difficult
question. The fact that the arguments yesterday were quite impassioned and
meritorious merely tell us that this is far from a well-settled issue. At least in
my personal opinion, we would like the death penalty to be abolished.
However, in the future we should allow the National Assembly in its wisdom
and as representatives of the people, to still impose the death penalty for the
common good, in specific cases.

MR. SUAREZ.

Thank you.

I would like to pursue some more the Gentleman's definition of 'heinous

crimes'. Would the brutal murder of a rape victim be considered as falling
within that classification?

MR. MONSOD.
Madam President, yes, particularly, if it is a person in
authority. He would, therefore, add as an aggravating circumstance to the
crime the abuse of this position authority.

MR. SUAREZ.

Thank you.

21
Some examples of this may be taken by Congress from Richmond vs.
Lewis, 506 US 40, like "gratuitous violence" or "needless mutilation" of the
victim.

22

Paragraph 3 & 4 of the preamble reads:

WHEREAS, due to the alarming upsurge of such crimes which has resulted not
only in the loss of human lives and wanton destruction of property but has
also affected the nation's efforts towards sustainable economic development
and prosperity while at the same time has undermined the people's faith in
the Government and the latter's ability to maintain peace and order in the
country.

WHEREAS, the Congress, in the interest of justice, public order and the rule of
law, and the need to rationalize and harmonize the penal sanctions for
heinous crimes, finds compelling reasons to impose the death penalty for said
crimes;

23
Record of the House of Representatives, First Regular Session, 19921993, Volume IV, February 10, 1993, p. 674, emphasis supplied.

24
Record of the House of Representatives, First Regular Session, 19921993, Vol. III, November 10, 1992, p. 448; emphasis supplied.

25
Record of the Senate, First Regular Session, January 18 to March 11,
1993, Volume III, No. 50, January 27, 1993, pp. 176-177.

26
See "Sponsorship Remarks" of Rep. Manuel Sanchez, Record of the
House of Representatives, November 9, 1992, pp. 40-42.

27
Witness, for instance, this interesting exchange between
Commissioners Joaquin Bernas and Napoleon Rama (I Record of the
Constitutional Commission, p. 678):

FR. BERNAS. When some experts appeared before us and we asked them if
there was evidence to show that the death penalty had deterred the
commission of deadly crimes, none of them was able to say that there was
evidence, conclusive evidence, for that.

MR. RAMA. I am curious. Who are experts then social scientist or

penologists or what?

FR. BERNAS. Penologists.

MR. RAMA. Of course we are aware that there is also another school of
thought here, another set of experts, who would swear that the death penalty
discourages crimes or criminality. Of course. Commissioner Bernas knows
that never in our history has there been a higher incidence of crime. I say
that criminality was at its zenith during the last decade.

FR. BERNAS. Correct, in spite of the existence of the death penalty.

MR. RAMA. Yes, but not necessarily in spite of the existence of the death
penalty. At any rate, does the sponsor think that in removing the death
penalty, it would not affect, one way or another, the crime rate of the
country?

FR. BERNAS. The position taken by the majority of those who voted in favor of
this provision is that means other than the death penalty should be used for
the prevention of crime.

28
Cf. Report to the United Nations Committee on Crime Prosecution and
Control, United Nations Social Affairs Division, Crime Prevention and Criminal
Justice Branch, Vienna, 1988, p. 110.

29
Former Chief Justice Enriquez M. Freehand, in his book, The Bill of
Rights, (Second Edition, 1972, p. 4.) states: "A regime of constitutionalism is
thus unthinkable without an assurance of the primacy of a bill of rights.
Precisely a constitution exists to assure that in the discharge of the
governmental functions, the dignity that is the birthright of every human
being is duly safeguarded. . . ." In the context of the role of a bill of right the
vast powers of government are clearly to be exercise within the limits set by

the constitution, particularly the bill of rights. In Ermita-Malate Hotel and

Motel Operators vs. City Mayor of Manila, (L-24693, July 31, 1967), it was held
that the exercise of police power, insofar as it may affect the life, liberty or
property of any person is subject to judicial inquiry. The guarantee in Sec. 1 of
Article III of the Constitution embraces life, liberty and property. In the words
of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil 515, 551-2
[1956]), ". . . individual freedom is too basic, too transcendental and vital in a
republican state, like ours, to be denied upon mere general principle and
abstract consideration of public safety. Indeed, the preservation of liberty is
such a major preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section (1) of the
Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5),
(6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said
section (1) to the protection of several aspects of freedom. . . ." These
guarantees are preserved in the 1987 Constitution, according to Fr. Bernas.

30
See, for instance People vs. Sinatao, 249 SCRA 554, 571, October 25,
1995, and People vs. Pidia, 249 SCRA 687, 702-703, November 10, 1995.

31

Art. III, Sec. 1.

32

Art. III, Sec. 11.

33

Art. II, Sec. 12 (2).

34

Art. II, Sec. 12.

35

Art. II, Secs. 15, 16 & 17.

36
For details, see Annex A of the Memorandum for the Accused-Appellant
dated September 26, 1996 filed by the Free Legal Assistance Group in People
vs. Malabago, G.R. No. 115686, December 2, 1996.

37
The FLAG-submitted Profile states that have been sentenced to death
by trial courts since the effectivity of RA 7659. The Philippine Star issue of
December 9, 1996, page 17, however reports that, quoting Sen. Ernesto
Herrera, the total number of death row inmates has gone up to 267, as of
November, 1996, of whom, more than one half (139) are rape convicts. Some
major dailies (Philippine Daily Inquirer, Philippine Star, Manila Standard) in
their February 3, 1997 issue up the death row figure to 300, as of the end of
January 1997, with 450 as the probable number at the end of 1997.

38
The preamble of the Constitution is theistic. It declares the "sovereign
Filipino people's imploration of the "aid of Almighty God".

39

Cetechism of the Catholic Churh, p. 512, Word and Life Publications:

2266. Preserving the common good of society requires rendering the

aggressor unable to inflict harm. For this reason the traditional teaching of
the Church has acknowledged as well-founded the right and duty of
legitimate public authority to punish malefactors by means of penalties
commensurate with the gravity of the crime, not excluding, in cases of
extreme gravity, the death penalty. For analogous reasons those holding
authority have the right to repel by armed force aggressors against the
community in their charge.

40

Evangelium Vitae, items no. 55 and 56 states:

55.
This should not cause surprise: to kill a human being, in whom the
image of God is present, is a particularly serious sin. Only God is the master
of life! Yet from the beginning, faced with the many and often tragic cases
which occur in the life of individuals and society, Christian reflection has
sought a fuller and deeper understanding of what God's commandment
prohibits and prescribes. There are, in fact situations in which values
proposed by God's Law seem to involve a genuine paradox. This happens for
example in the case of legitimate defence, in which the right to protect one's
own life and the duty not to harm someone else's life are difficult to reconcile
in practice. Certainly, the intrinsic value of life and the duty to love oneself no
less than others are the basis of a true right to self-defence. The demanding
commandment of love of neighbor, set forth in the Old Testament and

confirmed by Jesus, itself presupposes love of oneself as the basis of

comparison: "You shall love your neighbor as yourself" (Mk. 12:31).
Consequently, no one can renounce the right to self-defence out of lack of
love for life or for self. This can only be done in virtue of a heroic love which
deepens and transfigures the love of self into a radical self-offering, according
to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime example
of this self-offering is the Lord Jesus himself.

Moreover, "legitimate defence can be not only a right but a grave duty for
someone responsible for another's life, the common good of the family or of
the State." Unfortunately it happens that the need to render the aggresor
incapable of causing harm sometimes involves taking his life. In this case, the
fatal outcome is attributable to the aggressor incapable whose action brought
it about, even though he may not be morally responsible because of a lack of
the use of reason.

56.
This is context in which to place the problem of the death penalty. On
this matter there is a growing tendency, both in the Church and in civil
society, to demand that it be applied in a very limited way or even that it be
abolished completely. The problem must be viewed in the context of a system
of penal justice even more in line with dignity and thus, in the end, with God's
plan for man and society. The primary purpose of the punishment which
society inflicts is "to redress the disorder caused by the offence." Public
authority must redress the violation of personal and social rights by imposing
on the offender to regain the exercise of his or her freedom. In this way
authority also fulfills the purpose of defending public order and ensuring
people's safety, while at the same time offering the offender an incentive and
help to change his or her behavior and be rehabilitated.

It is clear that, for these purposes to be achieved, the nature and extent of
the punishment must be carefully evaluated and decided upon, and ought not
go to the extreme of executing the offender except in cases of absolute
necessity: in other words, when it would not be possible other wise to defend
society. Today however, as a result of steady improvements in the
organization of the penal system, such cases are very rare, if not partically
non-existent.1wphi1.nt

In any event, the principle, set forth in the new Catechism of the Catholic
Church remains valid: "If bloodless means are sufficient to defend human
lives against an aggressor and to protect public order and the safety of
persons, public authority must limit itself to such means, because they better
correspond to the concrete conditions of the common good and are more in
conformity to the dignity of the human person."

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