G.R. No.

117472

February 7, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEO ECHEGARAY y PILO, accused-appellant.

PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming the
conviction of the accused-appellant for the crime of raping his ten-year old
daughter. The crime having been committed sometime in April, 1994, during
which time Republic Act (R.A) No. 7659, commonly known as the Death Penalty
Law, was already in effect, accused-appellant was inevitably meted out the
supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration
which focused on the sinister motive of the victim's grandmother that
precipitated the filing of the alleged false accusation of rape against the accused.
We find no substantial arguments on the said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty.
Julian R. Vitug, and retained the services of the Anti-Death Penalty Task Force of
the Free Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for Reconsideration
prepared by the FLAG on behalf of accused-appellant. The motion raises the
following grounds for the reversal of the death sentence:
[1]
Accused-appellant should not have been prosecuted since the pardon by
the offended party and her mother before the filing of the complaint acted as a
bar to his criminal prosecution.
[2]
The lack of a definite allegation of the date of the commission of the
offense in the Complaint and throughout trial prevented the accused-appellant
from preparing an adequate defense.
[3]

The guilt of the accused was not proved beyond a reasonable doubt.

[4]
The Honorable Court erred in finding that the accused-appellant was the
father or stepfather of the complainant and in affirming the sentence of death
against him on this basis.
[5]
The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial.
[6]
The accused-appellant was denied his constitutional right to effective
assistance of counsel and to due process, due to the incompetence of counsel.

[7]

R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se:

a.
For crimes where no death results from the offense, the death penalty is a
severe and excessive penalty in violation of Article III, Sec. 19(1) of the 1987
Constitution.
b.
The death penalty is cruel and unusual punishment in violation of Article III,
Sec. 11 of the 1987 Constitution.
In sum, the Supplemental Motion for Reconsideration raises three (3) main issues:
(1) mixed factual and legal matters relating to the trial proceedings and findings;
(2) alleged incompetence of accused-appellant's former counsel; and (3) purely
legal question of the constitutionality of R.A. No. 7659.
I
It is a rudimentary principle of law that matters neither alleged in the pleadings
nor raised during the proceedings below cannot be ventilated for the first time on
appeal before the Supreme Court. Moreover, as we have stated in our Resolution
in Manila Bay Club Corporation v. Court of Appeals: 1
If well-recognized jurisprudence precludes raising an issue only for the first time
on appeal proper, with more reason should such issue be disallowed or
disregarded when initially raised only in a motion for reconsideration of the
decision of the appellate court.
It is to be remembered that during the proceedings of the rape case against the
accused-appellant before the sala of then presiding judge Maximiano C. Asuncion,
the defense attempted to prove that:
a)
the rape case was motivated by greed, hence, a mere concoction of the
alleged victim's maternal grandmother;
b)

the accused is not the real father of the complainant;

c)
the size of the penis of the accused cannot have possibly penetrated the
alleged victim's private part; and
d)

the accused was in Paraaque during the time of the alleged rape.

In his Brief before us when the rape case was elevated for automatic review, the
accused-appellant reiterated as grounds for exculpation:
a)
the ill-motive of the victim's maternal grandmother in prompting her
grandchild to file the rape case;
b)
the defense of denial relative to the size of his penis which could not have
caused the healed hymenal lacerations of the victim; and
c)

the defense of alibi.

Thus, a second hard look at the issues raised by the new counsel of the accusedappellant reveals that in their messianic appeal for a reversal of our judgment of
conviction, we are asked to consider for the first time, by way of a Supplemental
Motion for Reconsideration, the following matters:
a)
the affidavit of desistance written by the victim which acted as a bar to
the criminal prosecution for rape against the accused-appellant;
b)
the vagueness attributed to the date of the commission of the offense in
the Complaint which deprived the accused-appellant from adequately defending
himself;
c)
the failure of this Court to clearly establish the qualifying circumstance that
placed the accused-appellant within the coverage of the Death Penalty Law;
d)
the denial of due process and the manifest bias exhibited by the trial court
during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for reconsideration,
the only legitimate issue that we can tackle relates to the Affidavit of Desistance
which touches on the lack of jurisdiction of the trial court to have proceeded with
the prosecution of the accused-appellant considering that the issue of jurisdiction
over the subject matter may be raised at any time, even during appeal. 2
It must be stressed that during the trial proceedings of the rape case against the
accused-appellant, it appeared that despite the admission made by the victim
herself in open court that she had signed an Affidavit of Desistance, she,
nevertheless, "strongly pointed out that she is not withdrawing the charge
against the accused because the latter might do the same sexual assaults to
other women." 3 Thus, this is one occasion where an affidavit of desistance must
be regarded with disfavor inasmuch as the victim, in her tender age, manifested
in court that she was pursuing the rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare, 4 that:
As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by
the accused-appellant, an affidavit of desistance is merely an additional ground
to buttress the accused's defenses, not the sole consideration that can result in
acquittal. There must be other circumstances which, when coupled with the
retraction or desistance, create doubts as to the truth of the testimony given by
the witnesses at the trial and accepted by the judge. 5
In the case at bar, all that the accused-appellant offered as defenses mainly
consisted of denial and alibi which cannot outweigh the positive identification and
convincing testimonies given by the prosecution. Hence, the affidavit of
desistance, which the victim herself intended to disregard as earlier discussed,
must have no bearing on the criminal prosecution against the accused-appellant,
particularly on the trial court's jurisdiction over the case.
II

The settled rule is that the client is bound by the negligence or mistakes of his
counsel. 6 One of the recognized exceptions to this rule is gross incompetency in
a way that the defendant is highly prejudiced and prevented, in effect, from
having his day in court to defend himself. 7
In the instant case, we believe that the former counsel of the accused-appellant
to whom the FLAG lawyers now impute incompetency had amply exercised the
required ordinary diligence or that reasonable decree of care and skill expected
of him relative to his client's defense. As the rape case was being tried on the
merits, Atty. Vitug, from the time he was assigned to handle the case, dutifully
attended the hearings thereof. Moreover, he had seasonably submitted the
Accused-Appellant's Brief and the Motion for Reconsideration of our June 25, 1996
Decision with extensive discussion in support of his line of defense. There is no
indication of gross incompetency that could have resulted from a failure to
present any argument or any witness to defend his client. Neither has he acted
haphazardly in the preparation of his case against the prosecution evidence. The
main reason for his failure to exculpate his client, the accused-appellant, is the
overwhelming evidence of the prosecution. The alleged errors committed by the
previous counsel as enumerated by the new counsel could not have overturned
the judgment of conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as punishment
for violation of law or custom, religious or secular, is an ancient practice. We do
know that our forefathers killed to avenge themselves and heir akin and that
initially, the criminal law was used to compensate for a wrong done to a private
party or his family, not to punish in the name of the state.
The dawning of civilization brought with it both the increasing sensitization
throughout the later generations against past barbarity and the
institutionalization of state power under the rule of law. Today every man or
woman is both an individual person with inherent human rights recognized and
protected by the state and a citizen with the duty to serve the common weal and
defend and preserve society.
One of the indispensable powers of the state is the power to secure society
against threatened and actual evil. Pursuant to this, the legislative arm of
government enacts criminal laws that define and punish illegal acts that may be
committed by its own subjects, the executive agencies enforce these laws, and
the judiciary tries and sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on the
causes of criminal behavior and the purposes of criminal punishment, our
criminal laws have been perceived as relatively stable and functional since the
enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding
occasional opposition to the death penalty provisions therein. The Revised Penal
Code, as it was originally promulgated, provided for the death penalty in
specified crimes under specific circumstances. As early as 1886, though, capital

punishment had entered our legal system through the old Penal Code, which was
a modified version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a constitutional
question of whether or not the death penalty is a cruel, unjust, excessive or
unusual punishment in violation of the constitutional proscription against cruel
and unusual punishments. We unchangingly answered this question in the
negative in the cases of Harden vDirector of Prison, 8 People v. Limaco, 9 People
v. Camano, 10 People v. Puda 11 and People v. Marcos. 12 In Harden, we ruled:
The penalty complained of is neither cruel, unjust nor excessive. In Exparte Kemmler, 136 U.S., 436, the United States Supreme Court said that
'punishments are cruel when they involve torture or a lingering death, but the
punishment of death is not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous, something more
than the mere extinguishment of life. 13
Consequently, we have time and again emphasized that our courts are not the
for a for a protracted debate on the morality or propriety of the death sentence
where the law itself provides therefor in specific and well-defined criminal acts.
Thus we had ruled in the 1951 case of Limaco that:
. . . there are quite a number of people who honestly believe that the supreme
penalty is either morally wrong or unwise or ineffective. However, as long as that
penalty remains in the statute books, and as long as our criminal law provides for
its imposition in certain cases, it is the duty of judicial officers to respect and
apply the law regardless of their private opinions. 14
and this we have reiterated in the 1995 case of People v. Veneracion. 15
Under the Revised Penal Code, death is the penalty for the crimes of treason,
correspondence with the enemy during times of war, qualified piracy, parricide,
murder, infanticide, kidnapping, rape with homicide or with the use of deadly
weapon or by two or more persons resulting in insanity, robbery with homicide,
and arson resulting in death. The list of capital offenses lengthened as the
legislature responded to the emergencies of the times. In 1941, Commonwealth
Act (C.A.) No. 616 added espionage to the list. In the 1950s, at the height of the
Huk rebellion, the government enacted Republic Act (R.A.) No. 1700, otherwise
known as the Anti-Subversion Law, which carried the death penalty for leaders of
the rebellion. From 1971 to 1972, more capital offenses were created by more
laws, among them, the Anti-Hijacking Law, the Dangerous Drugs Act, and the
Anti-Carnapping Law. During martial law, Presidential Decree (P.D.) No. 1866 was
enacted penalizing with death, among others, crimes involving homicide
committed with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos regime and
led to the nullification of the 1973 Constitution, a Constitutional Commission was
convened following appointments thereto by Corazon Aquino who was catapulted
to power by the people.

Tasked with formulating a charter that echoes the new found freedom of a
rejuvenated people, the Constitutional Commissioners grouped themselves into
working committees among which is the Bill of Rights Committee with Jose B.
Laurel, Jr. as Chairman and Father Joaquin G. Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the committee draft of the proposed
bill of rights to the rest of the commission. What is now Article III, Section 19 (1)
of the 1987 Constitution was first denominated as Section 22 and was originally
worded as follows:
Excessive fines shall not be imposed nor cruel, degrading or inhuman punishment
or the death penalty inflicted. Death penalty already imposed shall be commuted
to reclusion perpetua.
Father Bernas explained that the foregoing provision was the result of a
consensus among the members of the Bill of Rights Committee that the death
penalty should be abolished. Having agreed to abolish the death penalty, they
proceeded to deliberate on how the abolition was to be done--whether the
abolition should be done by the Constitution or by the legislature-and the
majority voted for a constitutional abolition of the death penalty. Father Bernas
explained:
. . . [T]here 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 the 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 reasons which were presented in support of the constitutional
abolition of the death penalty. 16
The original wording of Article III, Section 19 (1), however, did not survive the
debate that it instigated. Commissioner Napoleon G. Rama first pointed out that
"never in our history has there been a higher incidence of crime" and that
"criminality was at its zenith during the last decade". 17 Ultimately, the dissent
defined itself to an unwillingness to absolutely excise the death penalty from our
legal system and leave society helpless in the face of a future upsurge of crimes
or other similar emergencies. As Commissioner Rustico F. de los Reyes, Jr.
suggested, "although we abolish the death penalty in the Constitution, we should
afford some amount of flexibility to future legislation", 18 and his concern was
amplified by the interpellatory remarks of Commissioner Lugum L. Commissioner
and now Associate Justice Florenz Regalado, Commissioner Crispino M. de Castro,
Commissioner Ambrosio B. Padilla, Commissioner Christian Monsod,

Commissioner Francisco A. Rodrigo, and Commissioner Ricardo Romulo.

Commissioner Padilla put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
BISHOP BACANI. . . . At present, they explicitly make it clear that the church has
never condemned the right of the state to inflict capital punishment.
MR. PADILLA. . . . So it is granted that the state is not deprived of the right even
from a moral standpoint of imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view,
that right of the state is not forbidden.
MR. PADILLA. In fact . . . we have to accept that the state has the delegated
authority from the Creator to impose the death penalty under certain
circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is
needed for the sake of the common good but the issue at stake is whether or not
under the present circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in
history, but it is not clear whether or not that delegation is forever under all
circumstances.
MR. PADILLA. So this matter should be left to the legislature to determine, under
certain specified conditions or circumstances, whether the retention of the death
penalty or its abolition would be for the common good. I do not believe this
Commission can a priori, and as was remarked within a few days or even a
month, determine a positive provision in the Constitution that would prohibit
even the legislature to prescribe the death penalty for the most heinous crimes,
the most grievous offenses attended by many qualifying and aggravating
circumstances. 19
What followed, thus, were proposed amendments to the beleaguered provision.
The move to add the phrase, "unless for compelling reasons involving heinous
crimes, the national assembly provides for the death penalty," came from
Commissioners Monsod, Jose E. Suarez and de los Reyes. Commissioner Rodrigo,
however, expressed reservations even as regards the proposed amendment. He
said:
. . . [T]he issue here is whether or not we should provide this matter in the
Constitution or leave it to the discretion of our legislature. Arguments pro and con
have been given. . . . But my stand is, we should leave this to the discretion of
the legislature.
The proposed amendment is halfhearted. It is awkward because we will, in effect
repeal by our Constitution a piece of legislation and after repealing this piece of
legislation tell the legislature that we have repealed the law and that the

legislature can go ahead and enact it again. I think this is not worthy of a
constitutional body like ours. If we will leave the matter of the death Penalty to
the legislature, let us leave it completely to the discretion of the legislature, but
let us not have this half-baked provision. We have many provisions in the Revised
Penal Code imposing the death penalty. We will now revoke or repeal these pieces
of legislation by means of the Constitution, but at the same time say that it is up
to the legislature to impose this again.
. . . The temper and condition of the times change . . . and so we, I think we
should leave this matter to the legislature to enact statutes depending on the
changing needs of the times. Let us entrust this completely to the legislature
composed of representatives elected by the people.
I do not say that we are not competent. But we have to admit the fact that we are
not elected by the people and if we are going to entrust this to the legislature, let
us not be half-baked nor halfhearted about it. Let us entrust it to the legislature
100 percent. 20
Nonetheless, the proposed amendment was approved with twenty-three (23)
commissioners voting in favor of the amendment and twelve (12) voting against
it, followed by more revisions, hence the present wording of Article III, Section
19(1) of the 1987 Constitution in the following tenor:
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.
The implications of the foregoing provision on the effectivity of the death penalty
provisions in the Revised Penal Code and certain special criminal laws and the
state of the scale of penalties thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for what used to be
capital crimes. In People v. Gavarra,21 we stated that "in view of the abolition of
the death penalty under Section 19, Article III of the 1987 Constitution, the
penalty that may be imposed for murder is reclusion temporal in its maximum
period to reclusion perpetua" 22 thereby eliminating death as the original
maximum period. The constitutional abolition of the death penalty, it seemed,
limited the penalty for murder to only the remaining periods, to wit, the minimum
and the medium, which we then, in People v, 23 People v. Atencio 24 and People
v. Intino 25 divided into three new periods, to wit, the lower half of reclusion
temporal maximum as the minimum; the upper half of reclusion temporal
maximum as the medium; and reclusion perpetuaas the maximum, in keeping
with the three-grade scheme under the Revised Penal Code. In People
v. Munoz, 26 however, we reconsidered these aforecited cases and after
extended discussion, we concluded that the doctrine announced therein did not
reflect the intention of the framers. The crux of the issue was whether or not
Article III, Section 19 (1) absolutely abolished the death penalty, for if it did, then,
the aforementioned new three-grade penalty should replace the old one where

the death penalty constituted the maximum period. But if no total abolition can
be read from said constitutional provision and the death penalty is only
suspended, it cannot as yet be negated by the institution of a new three-grade
penalty premised on the total inexistence of the death penalty in our statute
books. We thus ruled in Munoz
The advocates of the Masangkay ruling argue that the Constitution abolished the
death penalty and thereby limited the penalty for murder to the remaining
periods, to wit, the minimum and the medium. These should now be divided into
three new periods in keeping with the three-grade scheme intended by the
legislature. Those who disagree feel that Article III, Section 19 (1) merely
prohibits the imposition of the death penalty and has not, by reducing it
to reclusion perpetua, also correspondingly reduced the remaining penalties.
These should be maintained intact.
A reading of Section 19 (1) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty. The
provision merely says that the death penalty shall not be imposed unless for
compelling reasons involving heinous crimes the Congress hereafter provides for
it and, if already imposed, shall be reduced to reclusion perpetua. The language,
while rather awkward, is still plain enough. 27
Nothing is more defining of the true content of Article III, Section 19 (1) of the
1987 Constitution than the form in which the legislature took the initiative in reimposing the death penalty.
The Senate never doubted its power as vested in it by the constitution, to enact
legislation re-imposing the death penalty for compelling reasons involving
heinous crimes. Pursuant to this constitutional mandate, the Senate proceeded to
a two-step process consisting of: first, the decision, as a matter of policy, to reimpose the death penalty or not; and second, the vote to pass on the third
reading the bill re-imposing the death penalty for compelling reasons involving
heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments for and
against capital punishment, the Members of the Senate voted on the policy issue
of death penalty. The vote was explained, thus:
SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body suspended
the Rules of the Senate.
Thereafter, upon motion of Senator Romulo, there being no objection, the Chair
directed that a nominal voting be conducted on the policy issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would vote on this
policy question, Senator Romulo stated that a vote of Yes would mean a vote in

favor of death as a penalty to be reincorporated in the scale of penalties as

provided in the Revised Penal Code, and a vote of No would be a vote against the
reincorporation of death penalty in the scale of penalties in the Revised Penal
Code.
INQUIRY OF SENATOR ALVAREZ
xxx

xxx

xxx

The Chair explained that it was agreed upon that the Body would first decide the
question whether or not death penalty should be reimposed, and thereafter, a
seven-man committee would be formed to draft the compromise bill in
accordance with the result of the voting. If the Body decides in favor of the death
penalty, the Chair said that the committee would specify the crimes on which
death penalty would be imposed. It affirmed that a vote of Yes in the nominal
voting would mean a vote in favor of death penalty on at least one crime, and
that certain refinements on how the penalty would be imposed would be left to
the discretion of the seven-man committee.
xxx

xxx

xxx

INQUIRY OF SENATOR TANADA

In reply to Senator Tanada's query, the Chair affirmed that even if a senator
would vote "yes" on the basic policy issue, he could still vote "no" on the
imposition of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic policy
issue of whether or not the death penalty would be included in the scale of
penalties found in Article 27 of the Revised Penal Code. so that if it is voted down,
the Body would discontinue discussing Senate Bill No. 891 pursuant to the Rules,
but if approved, a special committee, as agreed upon in the caucus, is going to
be appointed and whatever course it will take will depend upon the mandate
given to it by the Body later on.
The Chair affirmed Senator Tolentino's observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as a penalty
will be reincorporated in the scale of penalties provided by the Revised Penal
Code. However, he pointed out that if the Body decides in favor of death penalty,
the Body would still have to address two issues: 1) Is the crime for which the
death penalty is supposed to be imposed heinous pursuant to the constitutional
mandate? 2) And, if so, is there a compelling reason to impose the death penalty
for it? The death penalty, he stressed, cannot be imposed simply because the
crime is heinous. 28

With seventeen (17) affirmative votes and seven (7) negative votes and no
abstention, the Chair declared that the Senate has voted to re-incorporate death
as a penalty in the scale of penalties as provided in the Revised Penal Code. A
nine-person committee was subsequently created to draft the compromise bill
pursuant to said vote. The mandate of the committee was to retain the death
penalty, while the main debate in the committee would be the determination of
the crimes to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee
on the Death Penalty, delivered his Sponsorship Speech. He began with an
explanation as to why the Senate Bill No. 891 re-imposes the death penalty by
amending the Revised Penal Code and other special penal laws and includes
provisions that do not define or punish crimes but serve purposes allied to the reimposition of the death penalty. Senator Tolentino stated:
. . . [W]hen the Senate approved the policy of reimposing the death penalty on
heinous crimes and delegated to the Special Committee the work of drafting a
bill, a compromise bill that would be the subject for future deliberations of this
Body, the Committee had to consider that the death penalty was imposed
originally in the Revised Penal Code.
So, when the Constitution was approved in order to do away with the death
penalty, unless Congress should, for compelling reasons reimpose that penalty on
heinous crimes, it was obvious that it was the Revised Penal Code that was
affected by that provision of the Constitution. The death penalty, as provided in
the Revised Penal Code, would be considered as having been repealed-all
provisions on the death penalty would be considered as having been repealed by
the Constitution, until Congress should, for compelling reasons, reimpose such
penalty on heinous crimes. Therefore, it was not only one article but many
articles of the Revised Penal Code that were actually affected by the Constitution.
And it is in consideration of this consequence of the constitutional provision that
our Special Committee had to consider the Revised Penal Code itself in making
this compromise bill or text of the bill. That is why, in the proposed draft now
under consideration which we are sponsoring, the specific provisions of the
Revised Penal Code are actually either reenacted or amended or both. Because
by the effect of the Constitution, some provisions were totally repealed, and they
had to be reenacted so that the provisions could be retained. And some of them
had to be amended because the Committee thought that amendments were
proper. 29
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it
would have been better if the Senate were to enact a special law which merely
defined and imposed the death penalty for heinous crimes, Senator Tolentino
explicated, thus:
. . . [T]hat may be a way presenting the bill. But we must bear in mind that the
death penalty is imposed in the Revised Penal Code. Therefore, when the
Constitution abolished the death penalty, it actually was amending the Revised

Penal Code to such an extent that the Constitution provides that where the death
penalty has already been imposed but not yet carried out, then the penalty shall
be reclusion perpetua, that is the penalty in the Revised Penal Code. So we
thought that it would be best to just amend the provisions of the Revised Penal
Code, restoring the death penalty for some crimes that may be considered as
heinous. That is why the bill is in this form amending the provisions of the
Revised Penal Code.
Of course, if some people want to present a special bill . . . the whole trouble is,
when a special bill is presented and we want to punish in the special bill the case
of murder, for instance, we will have to reproduce the provisions of the Revised
Penal Code on murder in order to define the crime for which the death penalty
shall be imposed. Or if we want to impose the death penalty in the case of
kidnapping which is punished in the Revised Penal Code, we will do the same
merely reproduce. Why will we do that? So we just followed the simpler method
of keeping the definition of the crime as the same and merely adding some
aggravating circumstances and reimposing the death penalty in these offenses
originally punished in the Revised Penal Code. 30
From March 17, 1993, when the death penalty bill was presented for discussion
until August 16, 1993, the Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept prodding
the sponsors of the bill to state the compelling reason for each and every crime
for which the supreme penalty of death was sought. Zeroing in on the statement
in the preamble of the death penalty bill that the same is warranted in the face of
"the alarming upsurge of [heinous] crimes", Senator Lina demanded for solid
statistics showing that in the case of each and every crime in the death penalty
bill, there was a significantly higher incidence of each crime after the suspension
of the death penalty on February 2, 1987 when the 1987 Constitution was ratified
by the majority of the Filipino people, than before such ratification. 31 Inasmuch
as the re-impositionists could not satisfy the abolitionists with sufficient statistical
data for the latter to accept the alarming upsurge of heinous crimes as a
compelling reason justifying the re-imposition of the death penalty, Senator Lina
concluded that there were, in fact, no compelling reasons therefor. In the
alternative, Senator Lina argued that the compelling reason required by the
constitution was that "the State has done everything in its command so that it
can be justified to use an inhuman punishment called death penalty". 32 The
problem, Senator Lina emphasized, was that even the re-impositionists admit
that there were still numerous reforms in the criminal justice system that may
and must be put in place, and so clearly, the recourse to the enactment of a
death penalty bill was not in the nature of a last resort, hence, unconstitutional in
the absence of compelling reasons. As an initial reaction to Senator Lina's
contentions, Senator Tolentino explained that the statement in the preamble is a
general one and refers to all the crimes covered by the bill and not to specific
crimes. He added that one crime may not have the same degree of increase in
incidence as the other crimes and that the public demand to impose the death
penalty is enough compelling reason. 33

Equally fit to the task was Senator Wigberto Tanada to whom the battle lines were
clearly drawn. He put to issue two things: first, the definition of "heinous crimes"
as provided for in the death penalty bill; and second, the statement of compelling
reasons for each and every capital crime. His interpellation of Senator Tolentino
clearly showed his objections to the bill:
Senator Tanada. . . . But what would make crimes heinous, Mr. President? Are
crimes heinous by their nature or elements as they are described in the bill or are
crimes heinous because they are punished by death, as bribery and malversation
are proposed to be punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but that is not
supposed to be the exclusive criterion. The nature of the offense is the most
important element in considering it heinous but at the same time, we should
consider the relation of the offense to society in order to have a complete idea of
the heinous nature of these offenses.
In the case of malversation or bribery, for instance, these offenses by themselves
connected with the effect upon society and the government have made them fall
under the classification of heinous crimes. The compelling reason for imposing
the death penalty is when the offenses of malversation and bribery becomes so
grave and so serious as indicated in the substitute bill itself, then there is a
compelling reason for the death penalty.
Senator Tanada. With respect to the compelling reasons. Mr. President, does the
Gentleman believe that these compelling reasons, which would call for the
reimposition of the death penalty, should be separately, distinctly and clearly
stated for each crime so that it will be very clear to one and all that not only are
these crimes heinous but also one can see the compelling reasons for the
reimposition of the death penalty therefor?
Senator Tolentino. Mr. President that matter was actually considered by the
Committee. But the decision of the Committee was to avoid stating the
compelling reason for each and every offense that is included in the substitute
measure. That is why in the preamble, general statements were made to show
these compelling reasons. And that we believe, included in the bill, when
converted into law, would be sufficient notice as to what were considered
compelling reasons by the Congress, in providing the death penalty for these
different offenses.
If a matter like this is questioned before the Supreme Court, I would suppose that
with the preamble already in general terms, the Supreme Court would feel that it
was the sense of Congress that this preamble would be applicable to each and
every offense described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for each
and every offense.
Senator Tanada. Mr. President, I am thinking about the constitutional limitations
upon the power of Congress to enact criminal legislation, especially the

provisions on the Bill of Rights, particularly the one which says that no person
shall be held to answer for a criminal offense without due process of law.
Can we not say that under this provision, it is required that the compelling
reasons be so stated in the bill so that the bill, when it becomes a law, will clearly
define the acts and the omissions punished as crimes?
Senator Tolentino. Mr. President I believe that in itself, as substantive law, this is
sufficient. The question of whether there is due process will more or less be a
matter of procedure in the compliance with the requirements of the Constitution
with respect to due process itself which is a separate matter from the substantive
law as to the definition and penalty for crimes.
Senator Tanada. Under the Constitution, Mr. President, it appears that the
reimposition of the death penalty is subject to three conditions and these are:
1.

Congress should so provide such reimposition of the death penalty;

2.

There are compelling reasons; and

3.

These involve heinous crimes.

Under these provision of the Constitution, paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress is bound to state clearly the
compelling reasons for the reimposition of the death penalty for each crime, as
well as the elements that make each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that
whether we state the compelling reasons or not, whether we state why a certain
offense is heinous, is not very important. If the question is raised in the Supreme
court, it is not what we say in the bill that will be controlling but what the
Supreme Court will fell as a sufficient compelling reason or as to the heinous
nature whether the crime is heinous or not. The accused can certainly raise the
matter of constitutionality but it will not go into the matter of due process. It will
go into the very power of Congress to enact a bill imposing the death penalty. So
that would be entirely separate from the matter of due process. 34
Senator Francisco Tatad, on his part, pointed out that the death penalty bill
violated our international commitment in support of the worldwide abolition of
capital punishment, the Philippines being a signatory to the International
Covenant on Civil and Political Rights and its Second Optional Protocol. Senator
Ernesto Herrera clarified, however, that in the United Nations, subject matters are
submitted to the different committees which vote on them for consideration in
the plenary session. He stressed that unless approved in the plenary session, a
declaration would have no binding effect on signatory countries. In this respect,
the Philippines cannot be deemed irrevocably bound by said covenant and
protocol considering that these agreements have reached only the committee
level. 35

After the protracted debate, the Members of the Senate voted on Senate Bill No.
891 on third reading. With seventeen (17) affirmative votes, four (4) negative
votes, and one abstention, the death penalty bill was approved on third reading
on August 16, 1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on August 16,
1993 was a vindication of, the House of Representatives. The House had, in the
Eight Congress, earlier approved on third reading House Bill No. 295 on the
restoration of the death penalty for certain heinous crimes. The House was in
effect rebuffed by the Senate when the Senate killed House Bill No. 295 along
with other bills coming from the House. House Bill No. 295 was resurrected during
the Ninth Congress in the form of House Bill No. 62 which was introduced by
twenty one (21) Members of the House of Representatives on October 27, 1992.
House Bill No. 62 was a merger of House Bill Nos. 125, 187, 411, 764, 506, 781,
955, 1565, 1586, 2206, 3238, 3576 and 3632 authored by various Members of
the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably
essayed the constitutional vesting in Congress of the power to re-impose the
death penalty for compelling reasons invoking heinous crimes as well as the
nature of this constitutional pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote:
Neither shall death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress shall thereafter provide for it. . .
The phrase "unless, for compelling reasons involving heinous crimes, the
Congress shall thereafter provide for it was introduced as an amendment by then
Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the death
penalty was not completely abolished by the 1987 Constitution. Rather, it merely
suspended the death penalty and gave Congress the discretion to review it at the
propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo
Romulo said, and I quote:
"The people should have the final say on the subject, because, at some future
time, the people might want to restore death penalty through initiative and
referendum.
Commissioner Monsod further argued, and I quote:
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.
xxx

xxx

xxx

I believe that [there] are enough compelling reasons that merit the reimposition
of the capital punishment. The violent manner and the viciousness in which
crimes are now committed with alarming regularity, show very clearly a patent
disregard of the law and a mockery of public peace and order.
In the public gallery section today are the relatives of the vict ims of heinous
crimes the Hultmans, the Maguans, the Vizcondes, the Castanoses, and many
more, and they are all crying for justice. We ought to listen to them because their
lives, their hopes, their dreams, their future have fallen asunder by the cruel and
vicious criminality of a few who put their selfish interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent manner
in which the same was committed or by the reason of its inherent viciousness,
shows a patent disregard and mockery of the law, public peace and order, or
public morals. It is an offense whose essential and inherent viciousness and
atrocity are repugnant and outrageous to a civilized society and hence, shock the
moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely
daughters, will stand in the people's memory for many long years as the epitome
of viciousness and atrocity that are repugnant to civilized society.
The senseless murder of Eldon Maguan, and up-and-coming young business
executive, was and still is an outrage that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high school
student who dreamt of becoming a commercial model someday, at the hands of
a crazed man was so repulsive, so brutal that it offends the sensibilities of
Christians and non-Christians alike.
The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the
lovely and promising couple from the University of the Philippines, is eternally
lodged in the recesses of our minds and still makes our stomach turn in utter
disgust.
xxx

xxx

xxx

The seriousness of the situation is such that if no radical action is taken by this
body in restoring death penalty as a positive response to the overwhelming
clamor of the people, then, as Professor Esteban Bautista of the Philippine Law
Center said and I quote:
"When people begin to believe that organized society is unwilling or unable to
impose upon criminal offenders the punishment they deserve, there are sown the
seeds of anarchy of self-help, of vigilante justice and lynch law. The people will
take the law upon their hands and exact vengeance in the nature of personal
vendetta."
It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62.

As duly elected Representatives of our people, collectively, we ought to listen to

our constitutents and heed their plea a plea for life, liberty and pursuit of their
happiness under a regime of justice and democracy, and without threat that their
loves ones will be kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could rely on for
justice. A law that will exact retribution for the victims. A law that will deter future
animalistic behavior of the criminal who take their selfish interest over and above
that of society. A law that will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold
dear and sacred, let us retore the death penalty. 36
A studious comparison of the legislative proceedings in the Senate and in the
House of Representatives reveals that, while both Chambers were not wanting of
oppositors to the death penalty, the Lower House seemed less quarrelsome about
the form of the death penalty bill as a special law specifying certain heinous
crimes without regard to the provisions of the Revised penal Code and more
unified in the perception of what crimes are heinous and that the fact of their
very heinousness involves the compulsion and the imperative to suppress, if not
completely eradicate, their occurrence. Be it the foregoing general statement of
Representative Sanchez or the following details of the nature of the heinous
crimes enumerated in House Bill No. 62 by Representative Miguel L. Romero of
Negros Oriental, there was clearly, among the hundred or so re-impositionists in
the Lower House, no doubt as to their cause:
My friends, this bill provides for the imposition of the death penalty not only for
the importation, manufacture and sale of dangerous drugs, but also far other
heinous crimes such as reason; parricide; murder; kidnapping; robbery; rape as
defined by the Revised Penal Code with or without additionally defined
circumstances; plunder, as defined in R.A. 7080; piracy, as defined under Section
2 of PD 532: carnapping, as defined in Section 2 of RA 6539, when the owner,
driver or occupant is killed; hijacking as defined in . . . RA 6235; and arson
resulting in the death of any occupants.
All these crimes have a common denominator which qualifies them to the level of
heinous crimes. A heinous crime is one which by reason of its inherent or
manifest wickedness, viciousness, atrocity or perversity, is repugnant and
outrageous to the common standards of decency and morality in a just and
civilized society.
For instance, the crime of treason is defined as a breach of allegiance to a
government, committed by a person who owes allegiance to it (U.S. v. Abad I Phil.
437). By the "allegiance" is meant the obligation of fidelity and obedience which
individuals owe to the government under which they live or to their sovereign in
return for the protection which they receive (52 Arm Jur 797).
In kidnapping, the though alone of one's loved one being held against his or her
own will in some unidentified xxx house by a group of scoundrels who are

strangers is enough terrify and send shivers of fear through the spine of any
person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is being
punished by death is the fact that the perpetrator, at the time of the commission
of the crime, thinks nothing of the other crime he commits and sees it merely as
a form of self-amusement. When a homicide is committed by reason of the
robbery, the culprits are perceived as willing to take human life in exchange for
money or other personal property.
In the crime of rape, not only do we speak of the pain and agony of the parents
over the personal shock and suffering of their child but the stigma of the
traumatic and degrading incident which has shattered the victim's life and
permanently destroyed her reputation, not to mention the ordeal of having to
undergo the shameful experience of police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the universal
hostility of the perpetrators against their victims who are passengers and
complement of the vessel, and because of the fact that, in the high seas, no one
may be expected to be able to come to the rescue of the helpless victims. For the
same reason, Mr. Speaker, the crime of air piracy is punished due to the evil
motive of the hijackers in making unreasonable demands upon the sovereignty of
an entire nation or nations, coupled with the attendant circumstance of
subjecting the passengers to terrorism. 37
The debate on House Bill No. 62 lasted from October 27, 1992 to February 11,
1993. On February 11, 1993, the Members of the House of Representatives
overwhelmingly approved the death penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of the House of
Representatives cast their vote on House Bill No. 62 when it was up for
consideration on third reading. 38 The results were 123 votes in favor, 26 votes
against, and 2 abstentions.
After the approval on third reading of House Bill No. 62 on February 23, 1993 and
of Senate Bill No. 891 on August 16, 1993, the Bicameral Conference Committee
convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose
the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the
Revised Penal Code, as Amended, Other Special Penal Laws, and for Other
Purposes," took effect. 39
Between December 31, 1993, when R.A No. 7659 took effect, and the present
time, criminal offenders have been prosecuted under said law, and one of them,
herein accused-appellant has been, pursuant to said law, meted out the supreme
penalty of death for raping his ten-year old daughter. Upon his conviction his case
was elevated to us on automatic review. On June 25, 1996, we affirmed his
conviction and the death sentence.

Now, accused-appellant comes to us in the heels of this court's affirmation of his

death sentence and raises for the first time the issue of the constitutionality of
R.A. 7659. His thesis is two-fold: (1) that the death penalty law is
unconstitutional per se for having been enacted in the absence of compelling
reasons therefor; and (2) that the death penalty for rape is a cruel, excessive and
inhuman punishment in violation of the constitutional proscription against
punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with accused-appellant's
view that Congress enacted R.A No. 7659 without complying with the twin
requirements of compelling reasons and heinous crimes.
At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as
unfurled in the beginning of this disquisition, necessarily provide the context for
the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the
power to re-impose the death penalty "for compelling reasons involving heinous
crimes". This power is not subsumed in the plenary legislative power of Congress,
for it is subject to a clear showing of "compelling reasons involving heinous
crimes."
The constitutional exercise of this limited power to re-impose the death penalty
entails (1) that Congress define or describe what is meant by heinous crimes; (2)
that Congress specify and penalize by death, only crimes that qualify as heinous
in accordance with the definition or description set in the death penalty bill
and/or designate crimes punishable by reclusion perpetua to death in which latter
case, death can only be imposed upon the attendance of circumstances duly
proven in court that characterize the crime to be heinous in accordance with the
definition or description set in the death penalty bill; and (3) that Congress, in
enacting this death penalty bill be singularly motivated by "compelling reasons
involving heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659, we find the
definition or description of heinous crimes. Said clause provides that:
. . . 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.
Justice Santiago Kapunan, in his dissenting opinion in People
v. Alicando, 40 traced the etymological root of the word "heinous" to the Early
Spartans' word, "haineus", meaning hateful and abominable, which in turn, was
from the Greek prefix "haton", denoting acts so hatefully or shockingly evil.

We find the foregoing definition or description to be a sufficient criterion of what

is to be considered a heinous crime. This criterion is deliberately undetailed as to
the circumstances of the victim, the accused, place, time, the manner of
commission of crime, its proximate consequences and effects on the victim as
well as on society, to afford the sentencing authority sufficient leeway to exercise
his discretion in imposing the appropriate penalty in cases where R.A. No 7659
imposes not a mandatory penalty of death but the more flexible penalty
of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and Taada
grilled the sponsors of the bill as regards what they perceived as a mere
enumeration of capital crimes without a specification of the elements that make
them heinous. They were oblivious to the fact that there were two types of crimes
in the death penalty bill: first, there were crimes penalized by reclusion
perpetua to death; and second, there were crimes penalized by mandatory
capital punishment upon the attendance of certain specified qualifying
circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to
death:
(1)

Treason (Sec. 2);

(2)

Qualified piracy (Sec. 3);

(3)

Parricide (Sec. 5);

(4)

Murder (Sec. 6);

(5)

Infanticide (Sec. 7);

(6)
Kidnapping and serious illegal detention if attended by any of the following
four circumstances: (a) the victim was detained for more than three days; (6) it
was committed simulating public authority; (c) serious physical injuries were
inflicted on the victim or threats to kill him were made; and (d) if the victim is a
minor, except when the accused is any of the parents, female or a public officer
(Sec. 8);
(7)

Robbery with homicide, rape or intentional mutilation (Sec. 9);

(8)
Destructive arson if what is burned is (a) one or more buildings or edifice;
(b) a building where people usually gather; (c) a train, ship or airplane for public
use: (d) a building or factory in the service of public utilities: (e) a building for the
purpose of concealing or destroying evidence of a crime: (f) an arsenal, fireworks
factory, or government museum: and (g) a storehouse or factory of explosive
materials located in an inhabited place; or regardless of what is burned if the
arson is perpetrated by two or more persons(Sec. 10);
(9)
Rape attended by any of the following circumstances: (a) the rape is
committed with a deadly weapon; (b) the rape is committed by two or more

persons: and (c) the rape is attempted or frustrated and committed with
homicide (Sec. 11);
(10)

Plunder involving at least P50 million(Sec. 12);

(11)

Importation of prohibited drugs (Sec. 13),

(12) Sale, administration delivery, distribution, and transportation of prohibited

drugs (id.);
(13)

Maintenance of den, dive or resort for users of prohibited drugs (id.);

(14)

Manufacture of prohibited drugs (id.);

(15)

Possession or use of prohibited drugs in certain specified amounts (id.)

(16)

Cultivation of plants which are sources of prohibited drugs (id.)

(17)

Importation of regulated drugs (Sec. 1J):

(18)

Manufacture of regulated drugs (id.);

(19) Sale, administration, dispensation, delivery, transportation, and

distribution of regulated drugs (id.):
(20)

Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15),

(21)

Possession or use of regulated drugs in specified amounts (Sec. 16);

(22) Misappropriation, misapplication or failure to account dangerous drugs

confiscated by the arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of
another to implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor
vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform penalty for all
of them being not mandatory death but the flexible penalty of reclusion
perpetua to death. In other words, it is premature to demand for a specification of
the heinous elements in each of the foregoing crimes because they are not
anyway mandatorily penalized with death. The elements that call for the
imposition of the supreme penalty of death in these crimes, would only be
relevant when the trial court, given the prerogative to imposereclusion perpetua,
instead actually imposes the death penalty because it has, in appreciating the
evidence proffered before it, found the attendance of certain circumstances in
the manner by which the crime was committed, or in the person of the accused
on his own or in relation to the victim, or in any other matter of significance to
the commission of the crime or its effects on the victim or on society, which
circumstances characterize the criminal acts as grievous, odious, or hateful, or
inherently or manifestly wicked, vicious, atrocious or perverse as to be repugnant

and outrageous to the common standards and norms of decency and morality in
a just, civilized and ordered society.
On the other hand. under R.A. No 7659, the mandatory penalty of death is
imposed in the following crimes:
(1)

Qualified bribery

"If any public officer is entrusted with law enforcement and he refrains from
arresting or prosecuting an offender who has committed a come punishable
by reclusion perpetua and/or death in consideration of any offer, promise, gift or
present, he shall suffer the penalty for the offense which was not prosecuted
If it is the public officer who asks or demands such gift or present, he shall suffer
the penalty of death. (Sec. 4)
(2)
Kidnapping and serious illegal detention for ransom resulting in the death
of the victim or the victim is raped tortured or subjected to dehumanizing acts
"The penalty shall be death where the kidnapping or detention was committed for
the purpose of ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention " is raped, or
is subject to torture or dehumanizing acts, the maximum penalty [of death] shall
be imposed. (Sec. 8)
(3)

Destructive arson resulting in death

"If as a consequence of the commission of any of the acts penalized under this
Article, death results, the mandatory penalty of death shall be imposed." (Sec.
10)
(4)
Rape with the victim becoming insane, rape with homicide and qualified
rape
"When by reason or on the occasion of the rape, the victim has become insane,
the penalty shall be death.
xxx

xxx

xxx

When by reason or on the occasion of the rape, a homicide is committed, the

penalty shall be death.
The death penalty shall also be Imposed if the crime of rape is committed with
any of the following attendant circumstances:
1.
When the victim is under eighteen (18) years of age and the offender is
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim.

2.

when the victim is under the custody of the police or military authorities.

3.
when the rape is committed in full new of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.
4.

when the victim is a religious or a child below seven (7) years old.

5.
when the offender that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.
6.
when committal by any member of the Armed Forces of the Philippines or
the Philippine National Police or any law enforcement agency.
7.
when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation. (Sec. 11)
(5)
Sale, administration, delivery, distribution and transportation of prohibited
drugs where the victim is a minor or the victim dies
"Notwithstanding, the provision of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of victim thereof;
the maximum penalty [of death] herein provided shall be imposed." (Sec. 13)
(6)
Maintenance of den, dive, or resort for users of prohibited drugs where the
victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum of the penalty (of death) shall be imposed in every case where a
prohibited drug is administered, delivered or sold to a minor who is allowed to
use the same in such place.
Should a prohibited drug be the proximate case of the death of a person using
the same in such den, dive or resort, the maximum penalty herein provided shall
be imposed on the maintainer notwithstanding the provisions of Section 20 of this
Act to the contrary." (Sec. 13)
(7)
Sale, administration, dispensation, delivery, distribution and transportation
of regulated drugs where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a regulated drug involved in any
offense under this Section be the proximate cause of the death of a victim
thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec.
14)
(8)
Maintenance of den, dive. or resort for users of regulated drugs where the
victim is a minor or the victim dies
'Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum penalty [of death] herein provided shall be imposed in every case

where a regulated drug is administered, delivered or sold to a minor who is

allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using the
same in such den, dive or resort, the maximum penalty herein provided shall be
imposed on the maintainer notwithstanding the provisions of Section 20 of this
Act to the contrary." (Sec. 15)
(9)
Drug offenses if convicted are government officials, employees or officers
including members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5 (1 ), 6, 7, 8.
R, 9 1 1, 12 and 13 of Article II and Sections 14, 14-A, 14 ( 1), 15A (1), 16, and 19
of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found
guilty of any of the same offenses are government officials, employees or officers
including members of police agencies and the armed forces. " (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the
mandatory death penalty if convicted are government officials, employees or
officers
"Any such above government official, employee or officer who is round guilty of
planting any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article
II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of
1972) in the person or in the immediate vicinity of another as evidence to
implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19)
(11)

In all the crimes in RA. No. 7659 in their qualified form

"When in the commission of the crime, advantage was taken by the offends of his
public position, the penalty to be imposed shall be in its maximum [of death]
regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed
by any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of gain
in the commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of heinousness
must be squarely applied.
The evil of a crime may take various forms. There are crimes that are, by their
very nature, despicable, either because life was callously taken or the victim is
treated like an animal and utterly dehumanized as to completely disrupt the
normal course of his or her growth as a human being. The right of a person is not
only to live but to live a quality life, and this means that the rest of society is
obligated to respect his or her individual personality, the integrity and the
sanctity of his or her own physical body, and the value he or she puts in his or
her own spiritual, psychological, material and social preferences and needs. Seen

in this light, the capital crimes of kidnapping and serious illegal detention for
ransom resulting in the death of the victim or the victim is raped, tortured, or
subjected to dehumanizing acts; destructive arson resulting in death; and drug
offenses involving minors or resulting in the death of the victim in the case of
other crimes; as well as murder, rape, parricide, infanticide, kidnapping and
serious illegal detention where the victim is detained for more than three days or
serious physical injuries were indicted on the victim or threats to kill him were
made or the victim is a minor, robbery with homicide rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or
occupant of the carnapped vehicle is killed or raped, which are penalized
by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and
implications of the subject criminal acts in the scheme of the larger socio-political
and economic context in which the state finds itself to be struggling to develop
and provide for its poor and underprivileged masses. Reeling from decades of
corrupt tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will to dismantle
the culture of corruption dishonesty, greed and Syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the
populace. Terribly lacking the money to provide even the most basic services to
its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn,
the very survival of the people it governs over. Viewed in this context, no less
heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving government
officials, employees or officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
We have no doubt, therefore, that insofar as the element of heinousness is
concerned, R.A. No. 7659 has correctly identified crimes warranting the
mandatory penalty of death. As to the other crimes in R.A No 7659 punished
byreclusion perpetua to death, they are admittingly no less abominable than
those mandatorily penalized by death. The proper time to determine their
heinousness in contemplation of law, is when on automatic review, we are called
to pass on a death Sentence involving crimes punishable by reclusion perpetua to
death under R.A. No. 7659, with the trial court meting out the death sentence in
exercise of judicial discretion. This is not to say, however, that the aggravating
circumstances under the Revised Penal Code need be additionally alleged as
establishing the heinousness of the crime for the trial Court to validly impose the
death penalty in the crimes under R.A. No. 7659 which are punished with the
flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the provisions of
the Revised Penal Code relating to aggravating circumstances Secondly, R.A. No.
7659, while it specifies circumstances that generally qualify a crime provided
therein to be punished by the maximum penalty of death, neither amends nor
repeals the aggravating circumstances under the Revised Penal Code. Thus,

construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may
be imposed when (1) aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised Penal Code regarding the
imposition of the maximum penalty; and (2) other circumstances attend the
commission of the crime which indubitably characterize the same as heinous in
contemplation of R.A. No. 7659 that justify the imposition of death, albeit the
imposable penalty is reclusion perpetua to death. Without difficulty, we
understand the rationale for the guided discretion granted in the trial court to
cognize circumstances that characterize the commission of the crime as heinous.
Certainly there is an infinity of circumstances that may attend the commission of
a crime to the same extent that there is no telling the evil that man is capable of.
The legislature cannot and need not foresee and inscribe in law each and every
loathsome act man is capable of. It is sufficient thus that R.A. No. 7659 provides
the test and yardstick for the determination of the legal situation warranting the
imposition of the supreme penalty of death. Needless to say, we are not unaware
of the ever existing danger of abuse of discretion on the part of the trial court in
meting out the death sentence. Precisely to reduce to nil the possibility of
executing an innocent man or one criminal but not heinously criminal, R.A. No.
7659 is replete with both procedural and substantive safeguards that ensure only
the correct application of the mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional requirement that
the death penalty be re-imposed for compelling reasons involving heinous
crimes, we note that the main objection to the death penalty bill revolved around
the persistent demand of the abolitionists for a statement of the compelling
reason in each and every heinous crime and statistical proof that such compelling
reason actually exists.
We believe, however, that the elements of heinousness and compulsion are
inseparable and are, in fact, interspersed with each other. Because the subject
crimes are either so revolting and debasing as to violate the most minimum of
the human standards of decency or its effects, repercussions, implications and
consequences so destructive, destabilizing, debilitating, or aggravating in the
context of our socio-political and economic agenda as a developing nation, these
crimes must be frustrated, curtailed and altogether eradicated. There can be no
its or buts in the face of evil, and we cannot afford to wait until we rub elbows
with it before grasping it by the ears and thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first be pursued and
implemented before the death penalty be re-imposed in case such reforms prove
unsuccessful They claimed that the only compelling reason contemplated of by
the constitution is that nothing else but the death penalty is left for the
government to resort to that could check the chaos and the destruction that is
being caused by unbridled criminality.

Three of our colleagues, are of the opinion that the compelling reason
required by the constitution is that there occurred a dramatic and
significant change in the socio-cultural milieu after the suspension of
the death penalty on February 2, 1987 such as an unprecedented rise in the
incidence of criminality. Such are, however, interpretations only of the phrase
"compelling; reasons" but not of the conjunctive phrase "compelling reasons
involving heinous crimes". The imposition of the requirement that there be a
rise in the incidence of criminality because of the suspension of the
death penalty, moreover, is an unfair and misplaced demand, for what it
amounts to, in fact, is a requirement that the death penalty first proves itself to
be a truly deterrent factor in criminal behavior. If there was a dramatically
higher incidence of criminality during the time that the death penalty
was suspended, that would have proven that the death penalty was indeed a
deterrent during the years before its suspension. Suffice it to say that the
constitution in the first place did not require that the death penalty be
first proven to be a deterrent; what it requires is that there be compelling
reasons involving heinous crimes.
Article III, Section 19(1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may reimpose the death penalty. Nothing in the said provision imposes a
requirement that for a death penalty bill to be valid, a positive
manifestation in the form of a higher incidence of crime should first be
perceived and statistically proven following the suspension of the death
penalty. Neither does the said provision require that the death penalty be
resorted to as a last recourse when all other criminal reforms have
failed to abate criminality in society It is immaterial and irrelevant that R.A.
No. 7659 cites that there has been an "alarming upsurge of such crimes", for
the same was never intended by said law to be the yardstick to determine the
existence of compelling reasons involving heinous crimes. Fittingly, thus, what
R.A. No. 7659 states is that "the Congress, in the interest of justice, public
order and 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."
We now proceed to answer accused-appellant's other ground for attacking
the constitutionality of R.A. No. 7659,i., that the death penalty imposed
in rape is violative of the constitutional proscription against cruel,
degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel,
degrading or inhuman punishment as ruled by the United States (U)
Supreme Court in Furman v. Georgia. 41 To state, however, that the U.S. Supreme
Court, inFurman, categorically ruled that the death penalty is a cruel, degrading
or inhuman punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the arbitrariness
pervading the procedures by which the death penalty was imposed on the

accused by the sentencing jury. Thus, the defense theory in Furman centered not
so much on the nature of the death penalty as a criminal sanction but
on the discrimination against the black accused who is meted out the
death penalty by a white jury that is given the unconditional discretion to
determine whether or not to impose the death penalty. In fact, the long road of
the American abolitionist movement leading to the landmark case of Furman was
trekked by American civil rights advocates zealously fighting against racial
discrimination. Thus, the U.S. Supreme Court stated in Furman:
We cannot say from facts disclosed in these records that these
defendants were sentenced to death because they were black. Yet
our task is not restricted to an effort to divine what motives impelled these
death penalties. Rather, we deal with a system of law and of justice
that leaves to the uncontrolled discretion of judges or juries the
determination whether defendants committing these crimes
should die . . . .
xxx

xxx

xxx

In a Nation committed to equal protection of the laws there is no

permissible caste' aspect of law enforcement. Yet we know that the
discretion of judges and juries in imposing the death penalty enables the
penalty to be selectively applied feeding prejudices against the
accused if he is poor and despised . . .
xxx

xxx

xxx

Thus, these discretionary statutes are unconstitutional in their operation.

They are pregnant with discrimination and discrimination is an ingredient
not compatible with the idea of equal protection of the laws that is implicit
in the ban on cruel and unusual punishments.
Furman, thus, did not outlaw the death penalty because it was cruel and
unusual per se. While the U.S. Supreme Court nullified all discretionary death
penalty statutes in Furman, it did so because the discretion which these statutes
vested in the trial judges and sentencing juries was uncontrolled and without any
parameters, guidelines, or standards intended to lessen, if not altogether
eliminate, the intervention of personal biases, prejudices and discriminatory acts
on the part of the trial judges and sentencing juries.
Consequently, in the aftermath of Furman when most of the states re-enacted
their death penalty statutes now bearing the procedural checks that were
required by the U.S. Supreme Court, said court affirmed the constitutionality of
the new death penalty statutes in the cases of Gregg v. Georgia, 42 Jurek v.
Texas, 43 and Profitt v. Florida 44.
Next, accused-appellant asseverates that the death penalty is a cruel,
inhuman or degrading punishment for the crime of rape mainly because
the latter, unlike murder, does not involve the taking of life. In support of
his contention, accused-appellant largely relies on the ruling of the U.S. Supreme
Court in Coker v. Georgia. 45
In Coker, the U.S Supreme Court ruled as follows:
. . . It is now settled that the death penalty is not invariably cruel and
punishment within the meaning of Eight Amendment; it is not inherently

unacceptable mode of punishment for crime; neither is it always

disproportionate to the crime for which it is imposed. It is also
established that imposing capital punishment at least for murder, in
accordance with the procedures provided under the Georgia Statutes saves
the sentence from the infirmities which led the Court to invalidate the prior
Georgia capital punishment statute in Furman v. Georgia . . .
xxx

xxx

xxx

In Gregg [v. Georgia] . . . the Court's judgment was that the death
penalty for deliberate murder was neither the purposeless
Imposition of severe punishment nor a punishment grossly
disproportionate to the crime. But the Court reserved the question of
the constitutionality of the death penalty when imposed for other
crimes. . . .
That question, with respect to rape of an adult woman, is now before us.
xxx

xxx

xxx

. . . [T]he public judgment with respect to rape. as reflected in the statutes

providing the punishment for that crime, has been dramatically different.
In reviving death penalty laws to satisfy Furman's mandate, none
of the states that had not previously authorized death for rape
chose to include rape among capital felonies. Of the 16 States in
which rape had been a capital offense, only three provided the death
penalty for rape of an adult woman in their revised statutes-Georgia, North
Carolina and Louisiana. In the latter two States, the death penalty
was mandatory for those found guilty, and those laws were
invalidated by Woodson and Roberts. When Louisiana and North
Carolina respondent to those decisions, again revised their capital
punishment laws, they reenacted the death penalty for murder but
not for rape; none of the seven other legislatures that to our
knowledge have amended or replaced their death penalty statutes
since July 2, 1976, including four States (in addition to Louisiana and
North Carolina) that had authorized the death sentence for rape prior to
1972 and had reacted to Furman with mandatory statutes, included rape
among the crimes for which death was an authorized punishment.
xxx

xxx

xxx

It should be noted that Florida. Mississippi, and Tennessee also

authorized the death penalty in some rape cases, but only where
the victim was a child and the rapist an adult. the Tennessee statute
has since been invalidated because the death sentence was mandatory. x x
x The upshot is that Georgia is the sole jurisdiction in the United States at
the present time that authorizes a sentence of death when the rape victim
is an adult woman, and only two other jurisdictions provide capital
punishment when the victim is a child.
The current judgment with respect to the death penalty for rape is not
wholly unanimous among state legislatures, but it obviously weighs very
heavily on the side of rejecting capital punishment as a suitable penalty for
raping an adult woman.

. . . [T]he legislative rejection of capital punishment for rape strongly

confirms our own judgment, which is that death is indeed a
disproportionate penalty for the crime of raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total contempt for
the personal integrity and autonomy of the female victim and for the
latter's privilege of choosing those with whom intimate relationships are to
be established. Short of homicide, it is the ultimate violation of self.
It is also a violent crime because it normally involves force, or the threat of
force or intimidation, to over come the will and the capacity of the victim to
resist. Rape is very often accompanied by physical injury to the female
and can also inflict mental and psychological damage. Because it
undermines the community's sense of security. there is public
injury as well.
Rape is without doubt deserving of serious punishment; but in
terms of moral depravity and of the injury to the person and to the
public. it does not compare with murder, which does involve the
unjustified taking of human life. Although it may be accompanied by
another crime, rape by definition does not include the death of or even the
serious injury to another person. The murderer kills; the rapist, if no more
than that does not. Life is over for the victim of the murderer; for
the rape victim, life may not be nearly so happy as it was, but it is
not over and normally is not beyond repair. We have the abiding
conviction that the death penalty, which "is unique in its severity and
irrevocability" . . . is an excessive penalty for the rapist who, as such
does not take human life.
The U.S. Supreme Court based its foregoing ruling on two grounds: first, that
the public has manifested its rejection of the death penalty an a proper
punishment for the crime of rape through the willful omission by the
state legislatures to include rape in their in the aftermath of Furman;
and second, that rape, while concededly a dastardly contemptuous
violation of a woman's spiritual integrity, physical privacy, and
psychological balance, does not involve the taking of life.
Anent the first ground, we fail to see how this could have any bearing on the
Philippine experience and in the context of our own culture.
Anent the second ground, we disagree with the court's predicate that the
gauge of whether or not a crime warrants the death penalty or not, is
the attendance of the circumstance of death on the part of the victim.
Such a premise is in fact an ennobling of the biblical notion of retributive justice
of "an eye for an eye, a tooth for a tooth". We have already demonstrated earlier
in our discussion of heinous crimes that the forfeiture of life simply because
life was taken, never was a defining essence of the death penalty in the
context of our legal history and cultural experience; rather, the death
penalty is imposed in heinous crimes because the perpetrators thereof
have committed unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely destructive effects
on the national efforts to lift the masses from abject poverty through
organized governmental strategies based on a disciplined and honest
citizenry, and because they have so caused irreparable and substantial
injury to both their victim and the society and a repetition of their acts

would pose actual threat to the safety of individuals and the survival of
government, they must be permanently prevented from doing so. At any
rate, this court has no doubts as to the innate heinousness of the crime of rape,
as we have held in the case of People v. Cristobal: 46
Rape deeply wounds the respect, Freedom Rape is the forcible violation
of the sexual intimacy of another person. It does injury to justice
and charity., and physical and moral integrity to which every person has
a right. It causes grave damage that can mark the victim for life. It is
always an intrinsically evil act . . . an outrage upon decency and
dignity that hurts not only the victim but the society itself
We are not unaware that for all the legal posturings we have so essayed here, at
the heart of the issue of capital punishment is the wistful, sentimental life-anddeath question to which all of us, without thinking, would answer, "life, of course,
over death". But dealing with the fundamental question of death provides
a context for struggling with even more basic questions, for to grapple
with the meaning of death is, in an indirect way to ask the meaning of
life. Otherwise put, to ask what the rights are of the dying is to ask
what the rights are of the living.
Capital punishment ought not to be abolished solely because it is
substantially repulsive, if infinitely less repulsive than the acts which
invoke it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyper fastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve the humane
society we will have to retain sufficient strength of character and will to do the
unpleasant in order that tranquility and civility may rule comprehensively. It
seems very likely that capital punishment is a . . . necessary, if limited
factor in that maintenance of social tranquility and ought to be retained
on this ground. To do otherwise is to indulge in the luxury of permitting a sense
of false delicacy to reign over the necessity of social survival. 47
WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and
Supplemental Motion for Reconsideration are hereby DENIED 48 for LACK OF
MERIT.
SO ORDERED
Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

__________________________

Separate Opinions

Time has transformed man into a highly intellectual and civilized, as well as, I
wish to believe, a humane and compassionate, being. The ancient edict of "an

eye for an eye, a tooth for a tooth" has since been abandoned by a society that
recognizes the good in every man and gives a transgressor an opportunity to
reform. Somehow, however, certain vestiges of savage retribution still remain;
indeed, the taking of a human life continues, at least in some penal systems, to
be an acceptable punishment.
In this country, the issue of whether or not the State should impose the death
penalty has recently been resolved with the ratification, on 02 February 1987, of
the Constitution by 76.29% of the electorate. Section 19, Article III, thereof,
states:
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 toreclusion perpetua.
Ours is a rule of law. The Supreme Court is not a political entity; it can merely
apply and interpret the law. It cannot. and it will not, spare itself from this
constitutionally-mandated duty. Death penalty cases are not excepted. In the
discharge of its grave responsibility, nevertheless, the Court must act with
greatest caution and strictest circumspection for there can be no stake that can
be higher, and no penalty that can be graver, than the extinction by the State of
human life.
The determination of when to prescribe the death penalty now lies with the sound
discretion of the law-making authority, the Congress of the Philippines, subject to
the conditions that the fundamental law 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 to me that the Constitution did not contemplate a simple

"reimposition" of the death penalty to offenses theretofore already provided in
the Revised Penal Code or just because of it.
The term "compelling reasons" should be enough to indicate that there must 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 mandate the death penalty. That
milieu must have turned from bad to worse.
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. To venture, in the case
of murder, the crime could 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.
I submit that, given the circumstances and the law before us, the Constitutional
fiat (now being raised for the first time in the instant Motion for Reconsideration)
in the imposition of the death penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty of reclusion perpetua (the next
lower penalty than death).
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 not 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
Section 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 toreclusion perpetua.
(Emphasis supplied)
The second and third sentences of the above provision are new and had nor 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 sentence 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 penalty ceased to exist in our penal laws and thus may no
longer be carried out. This is the clear intent of the framers of our Constitution.
As Comm. Bernas exclaimed, 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 non-imposition
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
framers 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 liber- ally 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:
(1)
by "compelling reasons" that may arise after the Constitution became
effective; and
(2)
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 an 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 severe 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: In 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 repeat, while the 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 There's nothing really new that
Congress did which it could not have otherwise done had such provision not been
included in our fundamental law.
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 so punishable by the Revised Penal Code 18 and by special laws. In
short, Sec. 19, Article III of the Constitution did nor have any impact upon the
legislative action. It was effectively ignored by Congress in enacting the capital
punishment law.
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 nor have in
mind the offenses already existing and already penalized with death. I also
believe that the heinousness clause requires that:
1)
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
2)
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
our 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, cavalierlytreated 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 that is one of the compelling reasons. But before we
dissect 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 state-decreed deaths. In fact,
I dare say that these "reasons" were even non-existent. 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 12Correspondingly, 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.).

by the PC.

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

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 16926 or a crime rate of 29 percent Would the Gentleman confirm
that, Mr Speaker?
MR GARCIA (P. 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 photo copy 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 stare, 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:
(1)
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.
(2)
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.
(3)
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.
(4)
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.

(5)
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.
(6)
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 show 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 a 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 constitutional 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
Stare and liberally in favor of the accused because such a statute 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 to prescribe death is severely limited by two
concurrent requirements:
(a)
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"
(b)
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 nor just for all crimes
generally and collectively.
"Thou shall not kill" is a 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 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 non-existent
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 for reasons of "absolute necessity"
involving crimes of "extreme gravity", which are very rare and practically nonexistent.
In the face of these evident truisms, I ask: Has 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, 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 therefor 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.

G.R. No. 117472. February 7, 1997.*

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO,
accused-appellant.
Remedial Law; Appeal; Matters neither alleged in the pleadings nor raised during
the proceedings below cannot be ventilated for the first time on appeal before

the Supreme Court.It is a rudimentary principle of law that matters neither

alleged in the pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court. Moreover, as we
have stated in our Resolution in Manila Bay Club Corporation v. Court of Appeals:
If well-recognized jurisprudence precludes raising an issue only for the first time
on appeal proper, with more reason should such issue be disallowed or
disregarded when initially raised only in a motion for reconsideration of the
decision of the appellate court.
Criminal Procedure; Affidavits; An affidavit of desistance is merely an additional
ground to buttress the accuseds defenses not the sole consideration that can
result in acquittal.It must be stressed that during the trial proceedings of the
rape case against the ac_______________

* EN BANC.

683

VOL. 267, FEBRUARY 7, 1997

683
People vs. Echegaray
cused-appellant, it appeared that despite the admission made by the victim
herself in open court that she had signed an Affidavit of Desistance, she,
nevertheless, strongly pointed out that she is not withdrawing the charge
against the accused because the latter might do the same sexual assaults to
other women. Thus, this is one occasion where an affidavit of desistance must
be regarded with disfavor inasmuch as the victim, in her tender age, manifested
in court that she was pursuing the rape charges against the accusedappellant.
We have explained in the case of People v. Gerry Ballabare, that: As pointed out
in People v. Lim (190 SCRA 706 [1990], which is also cited by the accusedappellant, an affidavit of desistance is merely an additional ground to buttress
the accuseds defenses, not the sole consideration that can result in acquittal.
There must be other circumstances which, when coupled with the retraction or
desistance, create doubts as to the truth of the testimony given by the witnesses
at the trial and accepted by the judge.
Constitutional Law; Death Penalty; Our courts are not the fora for a protracted
debate on the morality or propriety of the death sentence where the law itself
provides therefor in specific and welldefined criminal acts.Consequently, we
have time and again emphasized that our courts are not the fora for a protracted
debate on the morality or propriety of the death sentence where the law itself
provides therefor in specific and well-defined criminal acts. Thus we had ruled in
the 1951 case of Limaco that: x x x there are quite a number of people who
honestly believe that the supreme penalty is either morally wrong or unwise or

ineffective. However, as long as that penalty remains in the statute books, and as
long as our criminal law provides for its imposition in certain cases, it is the duty
of judicial officers to respect and apply the law regardless of their private
opinions. and this we have reiterated in the 1995 case of People v. Veneracion.
Same; Same; Congress has the power to re-impose the death penalty for
compelling reasons involving heinous crimes.Article III, Section 19(1) of the
1987 Constitution plainly vests in Congress the power to re-impose the death
penalty for compelling reasons involving heinous crimes. This power is not
subsumed in the plenary legislative power of Congress, for it is subject to a clear
showing of compelling reasons involving heinous crimes. The constitutional
exercise of this limited power to re-impose the death penalty entails: (1) that
Congress define or describe what is meant by heinous crimes; (2) that Congress
specify and penalize by death, only crimes
684

684
SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
that qualify as heinous in accordance with the definition or description set in the
death penalty bill and/or designate crimes punishable by reclusion perpetua to
death in which latter case, death can only be imposed upon the attendance of
circumstances duly proven in court that characterize the crime to be heinous in
accordance with the definition or description set in the death penalty bill; and (3)
that Congress, in enacting this death penalty bill be singularly motivated by
compelling reasons involving heinous crimes.
Same; Same; Definition of Heinous Crimes.In the second whereas clause of the
preamble of R.A. No. 7659, we find the definition or description of heinous crimes.
Said clause provides that: x x x 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. Justice Santiago Kapunan, in his
dissenting opinion in People v. Alicando, traced the etymological root of the word
heinous to the Early Spartans word, haineus, meaning, hateful and
abominable, which, in turn, was from the Greek prefix haton, denoting acts so
hatefully or shockingly evil.
Same; Same; R.A. No. 7659; Insofar as the element of heinousness is concerned,
R.A. No. 7659 has correctly identified crimes warranting the mandatory penalty of
death.We have no doubt, therefore, that insofar as the element of heinousness
is concerned, R.A. No. 7659 has correctly identified crimes warranting the
mandatory penalty of death. As to the other crimes in R.A. No. 7659 punished by
reclusion perpetua to death, they are admittingly no less abominable than those
mandatorily penalized by death. The proper time to determine their heinousness
in contemplation of law, is when on automatic review, we are called to pass on a
death sentence involving crimes punishable by reclusion perpetua to death under

R.A. No. 7659, with the trial court meting out the death sentence in exercise of
judicial discretion, This is not to say, however, that the aggravating
circumstances under the Revised Penal Code need be additionally alleged as
establishing the heinousness of the crime for the trial court to validly impose the
death penalty in the crimes under R.A. No. 7659 which are punished with the
flexible penalty of reclusion perpetua to death.
685

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685
People vs. Echegaray
Same; Same; Same; R.A. No. 7659 provides the test and yardstick for the
determination of the legal situation warranting the imposition of the supreme
penalty of death.In the first place, the 1987 Constitution did not amend or
repeal the provisions of the Revised Penal Code relating to aggravating
circumstances. Secondly, R.A. No, 7659, while it specifies circumstances that
generally qualify a crime provided therein to be punished by the maximum
penalty of death, neither amends nor repeals the aggravating circumstances
under the Revised Penal Code. Thus, construing R.A. No, 7659 in pari materia
with the Revised Penal Code, death may be imposed when: (1) aggravating
circumstances attend the commission of the crime as to make operative the
provision of the Revised Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the commission of the crime which
indubitably characterize the same as heinous in contemplation of R.A. No. 7659
that justify the imposition of death, albeit the imposable penalty is reclusion
perpetua to death. Without difficulty, we understand the rationale for the guided
discretion granted in the trial court to cognize circumstances that characterize
the commission of the crime as heinous. Certainly there is an infinity of
circumstances that may attend the commission of a crime to the same extent
that there is no telling the evil that man is capable of. The legislature cannot and
need not foresee and inscribe in law each and every loathsome act man is
capable of. It is sufficient thus that R.A. No. 7659 provides the test and yardstick
for the determination of the legal situation warranting the imposition of the
supreme penalty of death. Needless to say, we are not unaware of the ever
existing danger of abuse of discretion on the part of the trial court in meting out
the death sentence. Precisely to reduce to nil the possibility of executing an
innocent man or one criminal but not heinously criminal, R.A. No. 7659 is replete
with both procedural and substantive safeguards that ensure only the correct
application of the mandate of R.A. No. 7659.
Same; Same; Same; Furman did not outlaw the death penalty because it was
cruel and unusual per se.The issue in Furman was not so much death penalty
itself but the arbitrariness pervading the procedures by which the death penalty
was imposed on the accused by the sentencing jury. Thus, the defense theory in
Furman centered not so much on the nature of the death penalty as a criminal
sanction but on the discrimination against the black accused who is meted out
the death penalty by a white jury that is given the unconditional discretion to
determine whether or not to impose the death
686

686
SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
penalty. In fact, the long road of the American abolitionist movement leading to
the landmark case of Furman was trekked by American civil rights advocates
zealously fighting against racial discrimination. x x x Furman, thus, did not outlaw
the death penalty because it was cruel and unusual per se. While the U.S.
Supreme Court nullified all discretionary death penalty statutes in Furman, it did
so because the discretion which these statutes vested in the trial-judges and
sentencing juries was uncontrolled and without any parameters, guidelines, or
standards intended to lessen, if not altogether eliminate, the intervention of
personal biases, prejudices and discriminatory acts on the part of the trial judges
and sentencing juries.
SEPARATE OPINION:

Remedial Law; Appeal; Same; Same; Determination of when to prescribe the

death penalty now lies with the sound discretion of the law-making authority, the
Congress of the Philippines subject to the conditions that the fundamental law
has set forth.The determination of when to prescribe the death penalty now lies
with the sound discretion of the law-making authority, the Congress of the
Philippines, subject to the conditions that the fundamental law 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.
SEPARATE OPINION:

Remedial Law; Appeal; 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 no
longer be carried out.Section 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.
(Italics 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 of the death penalty unless for
compelling reasons involving heinous crimes, Congress provides for
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687
People vs. Echegaray
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 no longer be carried out. This is the clear intent of the
framers of our Constitution.
Same; Same; R.A. No. 7659 did not change the nature or the elements of the
crimes stated in the Penal Code and in the special laws.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 severe 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.
Same; Same; R.A. 7659 merely amended certain laws to prescribe death as the
maximum imposable penalty once the court appreciates the presence or absence
of aggravating circumstances.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. Theres
nothing really new that Congress did which it could not have otherwise done had
such provision not been included in our fundamental law. 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, no new crimes were introduced by RA 7659. The
offenses punished by death under said law were already so punishable by the
Revised Penal Code and by special laws. In short, Sec. 19, Article III of the
Constitution did not have any impact
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688
SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray

upon the legislative action. It was effectively ignored by Congress in enacting the
capital punishment law. People vs. Echegaray, 267 SCRA 682, G.R. No. 117472
February 7, 1997