Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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.

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 Parañaque 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 accused-appellant
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 v. Director 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 Ex-

parte 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" 22thereby
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. Masangkay, 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 perpetua as 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 re-imposing 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 re-impose 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 re-imposition 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 Tañada 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 impose reclusion 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 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.

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 re-impose 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.e., 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.S.) Supreme Court in Furman v. Georgia. 41 To
state, however, that the U.S. Supreme Court, in Furman, 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 is the forcible violation of the sexual intimacy of another person. It does
injury to justice and charity. Rape deeply wounds the respect, Freedom, 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-and-death 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
hyperfastidiousness 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
to reclusion 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 Reconsideration1 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
to reclusion 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 imposition5 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, cavalierly-treated or brushed aside. Thus, I believe that the compelling reasons and
the characterization of heinousness cannot be done wholesale but must shown for each and
every crime, individually and separately.

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

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

MR. LAGMAN: So what are the compelling reasons now, Mr.

Speaker? . . .

MR. GARCIA (P.) The worsening peace and order condition

in the country, Mr. Speaker. That is one.

MR. LAGMAN. So the compelling reason which the

distinguished sponsor would like to justify or serve as an
anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation.
The Gentleman claims that 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 12.305 in 1987 to

10.521 in 1988.Correspondingly, the crime rate in the very
year after the abolition of the death penalty was reduced from
21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are

the statistics supplied by the PC.

MR. LAGMAN. Now can we go again to 1987 when the

Constitution abolished the death penalty? May we know from
the distinguished Gentleman the volume of robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will
confirm it.

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

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime
rate was 40 percent.

MR. LAGMAN. This was the year immediately after the

abolition of the death penalty. Could the Gentleman tell us the
volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with

me, Mr. Speaker that the volume of robbery cases declined
from 22.942 in 1987 or crime rate of 40 percent to 16.926 or a
crime rate of 29 percent. Would the Gentleman confirm that,
Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say. I understand

we are reading now from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was

12,870 or a crime rate of 22 percent. The volume in 1988 was
11,132 or a crime rate of 19 percent. Would the Gentleman
confirm that, Mr. Speaker?
 MR. GARCIA(P.). As I Said, Mr. Speaker, we are reading
from the same document and I would not want to say that the
Gentleman is misreading the document that I have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself".

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

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

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

By the way, I will furnish my Colleagues with a 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
torture33 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) con- victs 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 non-existent.

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.
Separate Opinions

SEPARATE OPINION

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
to reclusion 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).

SEPARATE OPINION

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration1 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
to reclusion 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 imposition5 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, cavalierly-treated or brushed aside. Thus, I believe that the compelling reasons and
the characterization of heinousness cannot be done wholesale but must shown for each and
every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, in the words of
Comm. Monsod, "in the future, circumstances may arise which we should not preclude today
. . . and that the conditions and the situation (during the deliberations of the Constitutional
Commission) might change for very specific reasons" requiring the return of the
constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman
Pablo Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain
these compelling reasons: 23

MR. LAGMAN: So what are the compelling reasons now, Mr.

Speaker? . . .

MR. GARCIA (P.) The worsening peace and order condition

in the country, Mr. Speaker. That is one.

MR. LAGMAN. So the compelling reason which the

distinguished sponsor would like to justify or serve as an
anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation.
The Gentleman claims that 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 12.305 in 1987 to

10.521 in 1988.Correspondingly, the crime rate in the very
year after the abolition of the death penalty was reduced from
21 percent to 18 percent. Is that correct, Mr. Speaker?

MR. GARCIA (P.). That is correct, Mr. Speaker. Those are

the statistics supplied by the PC.

MR. LAGMAN. Now can we go again to 1987 when the

Constitution abolished the death penalty? May we know from
the distinguished Gentleman the volume of robbery in 1987?

MR. GARCIA (P.). Will the Gentleman state the figure? I will
confirm it.

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

MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime
rate was 40 percent.
 MR. LAGMAN. This was the year immediately after the
abolition of the death penalty. Could the Gentleman tell us the
volume of robbery cases in 1988?

MR. GARCIA (P.). It was 16,926, Mr. Speaker.

MR. LAGMAN. Obviously, the Gentleman would agree with

me, Mr. Speaker that the volume of robbery cases declined
from 22.942 in 1987 or crime rate of 40 percent to 16.926 or a
crime rate of 29 percent. Would the Gentleman confirm that,
Mr. Speaker?

MR. GARCIA (P.). This is what the statistics say. I understand

we are reading now from the same document.

MR. LAGMAN. Now, going to homicide, the volume 1987 was

12,870 or a crime rate of 22 percent. The volume in 1988 was
11,132 or a crime rate of 19 percent. Would the Gentleman
confirm that, Mr. Speaker?

MR. GARCIA(P.). As I Said, Mr. Speaker, we are reading

from the same document and I would not want to say that the
Gentleman is misreading the document that I have here.

MR. LAGMAN. But would the Gentleman confirm that?

MR. GARCIA (P.). The document speaks for itself".

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

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

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

By the way, I will furnish my Colleagues with a 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
torture33 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) con- victs 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 non-existent.

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.

Footnotes

1 249 SCRA 303, 307-308.

2 See Amigo v. Court of Appeals, 253 SCRA 382, 390 [1996]; De Leon v.
Court of Appeals, 245 SCRA 166, 172 [1995].

3 RTC Decision, p. 3; Rollo, p. 19.

4 G.R. No. 108871 promulgated on November 19, 1996.

5 People v. Pimentel, 118 SCRA 695 [1982]; citing People v. Manigbas, 109
Phil. 469 [1960].

6 Greenhills Airconditioning and Services, Inc. v. National Labor Relations

Commission, 245 SCRA 384, 389 [1995]; Arambulo v. Court of Appeals, 226
SCRA 589, 601 [1993]; Que v. Court of Appeals, 101 SCRA 13 [1980].

7 Suarez v. Court of Appeals, 220 SCRA 274, 279-280 [1993].

8 81 Phil. 741 [1948).

9 88 Phil. 36 [1951].

10 115 SCRA 688 [1982].

11 133 SCRA 1 [1984].

12 147 SCRA 204 [1987].

13 81 Phil. 741, 747 [1948].

14 88 Phil. 36, 43 [1951].

15 249 SCRA 246, 253 [1995].

16 Record, CONCOM, July 17, 1986, Vol. I, p. 676

17 Id., p. 678.

18 Id., p. 680.

19 Record, CONCOM, July 17, 1986, Vol. I, p. 712.

20 Id., p. 744.

21 155 SCRA 327 [1987].

22 Id., p. 335.

23 155 SCRA 113 [1987].

24 156 SCRA 242 [1987].

25 165 SCRA 637 [1988].

26 170 SCRA 107 [1989].

27 Id., p. 121.

28 Journal, Senate, February 15, 1993, Vol. 2, p. 1246.

29 Record, Senate, March 17, 1993, Vol. IV, p. 77.

30 Id., May 18, 1993, Vol. IV, p. 596.

31 Record, Senate, March 18, 1993, Vol. IV, pp. 106-112.

32 Journal, February 10 & 11, 1993, Vol. II, p. 1223.

33 Journal, Senate, March 22, 1993, Vol. II, pp. 1574-1575.

34 Record, Senate, May 11, 1993, Vol. IV, pp. 500-501.

35 Journal, Senate, February 2, 1993, Vol. II, p. 1161.

36 Record House of Representatives, Vol. III, November 9, 1992, pp. 417-

418.

37 Record House of Representatives. Vol. III, November 9, 1992, pp. 419-

420.
38 Record House of Representatives, Vol. V, February 23, 1993, p. 98.

39 People v. Simon, 234 SCRA 555 [1994]; People v. Timple. 237 SCRA 52
[1994].].

40 251 SCRA 293 [1995].

41 408 US 238, 33 L Ed 2d 346, 92 S Ct 2726.

42 428 US 153 49 L Ed 2d 859, 96 S Ct 2909.

43 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950

44 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.

45 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.

46 G.R No. 116279, promulgated on January 29, 1996.

47 Donald Atwell Zoll, "A Wistful Goodbye to Capital Punishment," National

Review, December 3, 1971, pp. 1351-1354.

48 Three members of the Court voted to declare R.A. 7659 unconstitutional

insofar as it reimposes the death penalty. Two of than wrote Separate
Opinions, which are attached as annexes hereto, without indicating the
names of the authors consistent with the Court's policy that, in death cases,
ponentes of opinions — whether majority or minority-are not to be indicated.

SEPARATE OPINION

1 It is called "Supplemental" because there was a (main) Motion for

Reconsideration filed by the previous counsel of the accused, which this
Court already denied.

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

3 Atty. Julian R. Vitug, Jr.

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

5 In People vs. Munoz, 170 SCRA 107, February 9, 1989; the Court, prior to
the enactment and effectivity of RA 7659, ruled by a vote of 9-6 (J.
Cruz, ponente, C.J. Fernan, JJ. Gutierrez, Jr., Feliciano, Gancayco, Padilla,
Bidin, Griño-Aquino and Medialdea, concurring) that the death penalty was
not abolished but: only prohibited from being imposed But see also the
persuasive Dissenting Opinion of Mme. Justice Ameurfina Melencio-Herrera
(joined by JJ. Narvasa, Paras, Sarmiento, Cortes and Regalado) who
contended that the Constitution totally abolished the death penalty and
removed it from the statute books. People vs. Munoz reversed the earlier
"abolition" doctrine uniformly held in People vs. Gavarra, 155 SCRA 327,
October 30, 1987, (per C.J. Yap); People vs. Masangkay, 155 SCRA 113,
October 27, 1987, (per J. Melencio-Herrera) and People vs. Atencio 156
SCRA 242, December 10, 1987 (per C.J. Narvasa). It is time that these
cases are revisited by this Court.

6 This quote is taken from I Record of the Constitutional Commission, p. 676

(July 17, 1986) as follows:

Fr. Bernas:

xxx xxx xxx

"My recollection on this is that there was a division in the Committee not on
whether the death penalty should be abolished or not, but rather on whether
the abolition should be done by the Constitution in which case it can not 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. (emphasis supplied)

7 Dissenting Opinion in People vs. Munoz, supra, p. 129.

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

9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus

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

10 People vs. Munoz, supra, p. 121.

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

12 Art. 114 - Treason; Art. 123 - Qualified Piracy; Art. 246 - Parricide; Art.
248 - Murder; Art. 255 - Infanticide; Art. 267 — Kidnapping and Serious
Illegal Detention; Art. 294 - Robbery with violence against or intimidation of
persons; 1, Art. 320 - Destructive Arson; Art. 335 - Rape.

13 Art. 211-A on Qualified Bribery.

14 Section 2, RA 7080 - Plunder; Sees. 3,4,5,7,8 and 9 of Article II of RA

6125 - Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425
- Carnapping.

15 A preamble is not an essential part of a statute. (Agpalo, Statutory

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

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

17 While plunder and qualified bribery are "new" capital offenses, RA 7659
nonetheless fails to justify why they are considered heinous. In addition, the
specific compelling reasons for the prescribed penalty of death are not laid
out by the statute.

18 In the case of rape, RA 7659 provided certain attendant circumstances

which the prosecution must prove before courts can impose the extreme
penalty. Just the same however, the law did not explain why said
circumstances would make the crimes heinous. Neither did it set forth the
compelling reasons therefor.

19 Record of the Senate, First Regular Session, January 18 to March 11,

1993, Volume III, No. 48, January 25, 1993, p. 122.

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

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

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

MR. SUAREZ. Thank you.

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

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

MR. MONSOD. Madam President, yes, particularly, if it is a person in

authority. He would, therefore, add as an aggravating circumstance to the
crime the abuse of his position in authority.

MR.SUAREZ. Thank you

21 Some examples of this may be taken by Congress from Richmond vs.

Lewis, 506 US 40, like "gratuitous violence" or "needless mutilation" of the
victim.

22 Paragraph 3 & 4 of the preamble reads:

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

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

23 Record of the House of Representatives, First Regular Session, 1992-

1993, Volume IV, February 10, 1993, p. 674, emphasis supplied.

24 Record of the House of Representatives, First Regular Session, 1992-

1993, Vol. III, November 10, 1992, p. 448; emphasis supplied.

25 Record of the Senate, First Regular Session, January 18 to March 11,

1993, Volume III, No. 50, January 27, 1993, pp. 176-177.

26 See "Sponsorship Remarks" of Rep. Manuel.Sanchez, Record of the

House of Representatives, November 9, 1992, pp. 40-42.

27 Witness, for instance, this interesting exchange between Commissioners

Joaquin Bernas and Napoleon Rama (I Record of the Constitutional
Commission, p. 678):

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

MR. RAMA. I am curious. Who are these experts then — social scientist or
penologists or what?

FR. BERNAS. Penologists.

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

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

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

FR. BERNAS. The position taken by the majority of those who voted in favor
of this provision is that means other than the death penalty should be used
for the prevention of crime.
28 Cf. Report to the United Nations Committee on Crime Prosecution and
Control, United Nations Social Affairs Division, Crime Prevention and
Criminal Justice Branch, Vienna, 1988, p. 110.

29 Former Chief Justice Enrique M. Fernando, in his book The Bill of Rights,
(Second Edition, 1972, p. 4) states: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly
safeguarded. . . ." In the context of the role of a bill of rights the vast powers
of government are clearly to be exercise within the limits set by the
constitution, particularly the bill of rights. In Ermita-Malate Hotel and Motel
Operators vs. City Mayor of Manila, (L-24693, July 31, 1967), it was held that
the exercise of police power, insofar as it may affect the life, liberty or
property of any person is subject to judicial inquiry. The guarantee in Sec. 1
of Article III of the Constitution embraces life, liberty and property. In the
words of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil. 515,
551-2 [1956]), ". . . individual freedom is too basic, too transcendental and
vital in a republican state, like ours, to be denied upon mere general
principles and abstract consideration of public safety. Indeed, the
preservation of liberty is such a major preoccupation of our political system
that, not satisfied with guaranteeing its enjoyment in the very first paragraph
of section (1) of the Bill of Rights, the framers of our Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17),
(18), and (21) of said section (1) to the protection of several aspects of
freedom. . . ." These guarantees are preserved in the 1987 Constitution,
according to Fr. Bernas.

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

31 Art III, Sec. 1.

32 Art.III, Sec. 11.

33 Art. III, Sec. 12 (2).

34 Art. III, Sec. 12.

35 Art. III, Secs. 15, 16 & 17.

36 For details, see Annex A of the Memorandum for the Accused-Appellant

dated September 26, 1996 filed by the Free Legal Assistance Group in
People vs. Malabago, G.R. No. 115686, December 2, 1996.

37 The FLAG-submitted Profile states that 186 have been sentenced to

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

38 The preamble of the Constitution is theistic. It declares the "sovereign

Filipino people's" imploration of the "aid of Almighty God".

39 Catechism of the Catholic Church, P. 512, Word and Life Publications:

"2266. Preserving the common good of society requires rendering the

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

40 Evangelium Vitae, items no. 55 and 56, states:

"55. This should not cause surprise: to kill a human being, in whom the image
of God is present, is a particularly serious sin. Only God is the master of life!
Yet from the beginning, faced with the many and often tragic cases which
occur in the life of individuals and society, Christian reflection has sought
fuller and deeper understanding of what God's commandment prohibits and
prescribes. There are, in fact, situations in which values proposed by God's
Law seem to involve a genuine paradox. This happens for example in the
case of legitimate defence, in which the right to protect one's own life and the
duty not to harm someone else's life are difficult to reconcile in practice.
Certainly, the intrinsic value of life and the duty to love oneself no less than
others are the basis of a true right to self-defence. The demanding
commandment of love of neighbor, set forth in the Old Testament and
confirmed by Jesus, itself presupposes love of oneself as the basis of
comparison: "You shall love your neighbor as yourself; (Mk 12:31).
Consequently, no one can renounce the right to self-defence out of lack of
love for life or for self. This can only be done in virtue of a heroic love which
deepens and transfigures the love of self into a radical self-offering,
according to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime
example of this self-offering is the Lord Jesus himself.

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

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

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

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