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G.R. No.

132601 January 19, 1999


LEO ECHEGARAY, petitioner,
vs.
SECRETARY OF JUSTICE, ET AL., respondents.
RESOLUTION

PUNO, J.:
For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this
Court dated January 4, 1990 temporarily restraining the execution of petitioner and Supplemental
Motion to Urgent Motion for Reconsideration. It is the submission of public respondents that:
1. The Decision in this case having become final and executory, its execution enters the
exclusive ambit of authority of the executive authority. The issuance of the TRO may
be construed as trenching on that sphere of executive authority;
2. The issuance of the temporary restraining order . . . creates dangerous precedent as
there will never be an end to litigation because there is always a possibility that
Congress may repeal a law.
3. Congress had earlier deliberated extensively on the death penalty bill. To be certain,
whatever question may now be raised on the Death Penalty Law before the present
Congress within the 6-month period given by this Honorable Court had in all
probability been fully debated upon . . .
4. Under the time honored maxim lex futuro, judex praeterito, the law looks forward
while the judge looks at the past, . . . the Honorable Court in issuing the TRO has
transcended its power of judicial review.
5. At this moment, certain circumstances/supervening events transpired to the effect
that the repeal or modification of the law imposing death penalty has become nil, to
wit:
a. The public pronouncement of President Estrada that he will veto any law
imposing the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal
of the law;
c. The fact that Senator Roco's resolution to repeal the law only bears his
signature and that of Senator Pimentel.
In their Supplemental Motion to Urgent Motion for Reconsideration, public respondents attached a
copy of House Resolution No. 629 introduced by Congressman Golez entitled "Resolution
expressing the sense of the House of Representative to reject any move to review Republic Act No.
7659 which provided for the re-imposition of death penalty, notifying the Senate, the Judiciary and

the Executive Department of the position of the House of Representative on this matter, and urging
the President to exhaust all means under the law to immediately implement the death penalty law."
The Resolution was concurred in by one hundred thirteen (113) congressman.
In their Consolidated Comment, petitioner contends: (1) the stay order. . . is within the scope of
judicial power and duty and does not trench on executive powers nor on congressional prerogatives;
(2) the exercise by this Court of its power to stay execution was reasonable; (3) the Court did not
lose jurisdiction to address incidental matters involved or arising from the petition; (4) public
respondents are estopped from challenging the Court's jurisdiction; and (5) there is no certainty that
the law on capital punishment will not be repealed or modified until Congress convenes and
considers all the various resolutions and bills filed before it.
Prefatorily, the Court likes to emphasize that the instant motions concern matters that are not
incidents in G.R. No. 117472, where the death penalty was imposed on petitioner on automatic
review of his conviction by this Court. The instant motions were filed in this case, G.R. No. 132601,
where the constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementing rules and
regulations was assailed by petitioner. For this reason, the Court in its Resolution of January 4, 1999
merely noted the Motion to Set Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and
Entry of Appearance of her counsel dated January 5, 1999. Clearly, she has no legal standing to
intervene in the case at bar, let alone the fact that the interest of the State is properly represented by
the Solicitor General.
We shall now resolve the basic issues raised by the public respondents.
I
First. We do not agree with the sweeping submission of the public respondents that this Court lost its
jurisdiction over the case at bar and hence can no longer restrain the execution of the petitioner.
Obviously, public respondents are invoking the rule that final judgments can no longer be altered in
accord with the principle that "it is just as important that there should be a place to end as there
should be a place to begin litigation." 1 To start with, the Court is not changing even a comma of its final
Decision. It is appropriate to examine with precision the metes and bounds of the Decision of this Court
that became final. These metes and bounds are clearly spelled out in the Entry of Judgment in this
case, viz:
ENTRY OF JUDGMENT
This is to certify that on October 12, 1998 a decision rendered in the above-entitled
case was filed in this Office, the dispositive part of which reads as follows:
WHEREFORE, the petition is DENIED insofar as petitioner seeks to
declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of the
Rules and Regulations to Implement Republic Act No. 8177 are
concerned, which are hereby declared INVALID because (a) Section
17 contravenes Article 83 of the Revised Penal Code, as amended by
Section 25 of Republic Act No. 7659; and (b) Section 19 fails to
provide for review and approval of the Lethal Injection Manual by the
Secretary of Justice, and unjustifiably makes the manual confidential,
hence unavailable to interested parties including the accused/convict
and counsel. Respondents are hereby enjoined from enforcing and
implementing Republic Act No. 8177 until the aforesaid Sections 17

and 19 of the Rules and Regulations to Implement Republic Act No.


8177 are appropriately amended, revised and/or corrected in
accordance with this Decision.
SO ORDERED.
and that the same has, on November 6, 1988 become final and executory and is
hereby recorded in the Book of Entries of Judgment.
Manila, Philippine.
Clerk
of
Court
By:
(SGD)
TERES
ITA G.
DIMAI
SIP
Acting
Chief
Judicial
Record
s Office
The records will show that before the Entry of Judgment, the Secretary of Justice, the Honorable
Serafin Cuevas, filed with this Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in compliance with our Decision. On
October 28, 1998, Secretary Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and Regulations as required by the Administrative
Code. It is crystalline that the Decision of this Court that became final and unalterable mandated: (1)
that R.A. No. 8177 is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulations
to Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and implemented
until sections 17 and 19 of the Rules and Regulations to Implement R.A. No. 8177 are amended. It is
also daylight clear that this Decision was not altered a whit by this Court. Contrary to the submission
of the Solicitor General, the rule on finality of judgment cannot divest this Court of its jurisdiction to
execute and enforce the same judgment. Retired Justice Camilo Quiason synthesized the well
established jurisprudence on this issue as
follows: 2
xxx xxx xxx
the finality of a judgment does not mean that the Court has lost all its powers nor the
case. By the finality of the judgment, what the court loses is its jurisdiction to amend,
modify or alter the same. Even after the judgment has become final the court retains
its jurisdiction to execute and enforce it. 3There is a difference between the jurisdiction
of the court to execute its judgment and its jurisdiction to amend, modify or alter the
same. The former continues even after the judgment has become final for the purpose of

enforcement of judgment; the latter terminates when the judgment becomes final. 4 . . .
For after the judgment has become final facts and circumstances may transpire which
can render the execution unjust or impossible.5

In truth, the arguments of the Solicitor General has long been rejected by this Court. As aptly pointed
out by the petitioner, as early as 1915, this Court has unequivocably ruled in the case of Director of
Prisons v. Judge of First Instance, 6 viz:
This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same cannot change or alter its
judgment, as its jurisdiction has terminated . . . When in cases of appeal or review
the cause has been returned thereto for execution, in the event that the judgment
has been affirmed, it performs a ministerial duty in issuing the proper order. But it
does not follow from this cessation of functions on the part of the court with reference
to the ending of the cause that the judicial authority terminates by having then
passed completely to the Executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out of the penalty
and to pardon.
Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible that assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the (court)
has performed its ministerial duty of ordering the execution . . . and its part is ended,
if however a circumstance arises that ought to delay the execution, and there is an
imperative duty to investigate the emergency and to order a postponement. Then the
question arises as to whom the application for postponing the execution ought to be
addressed while the circumstances is under investigation and so to who has
jurisdiction to make the investigation.
The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction for our Constitution 7 vests the entirety of judicial power in one
Supreme Court and in such lower courts as may be established by law. To be sure, the important part of a
litigation, whether civil or criminal, is the process of execution of decisions where supervening events may
change the circumstance of the parties and compel courts to intervene and adjust the rights of the
litigants to prevent unfairness. It is because of these unforseen, supervening contingencies that courts
have been conceded the inherent and necessary power of control of its processes and orders to make
them conformable to law and justice. 8 For this purpose, Section 6 of Rule 135 provides that "when by law
jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means
necessary to carry it into effect may be employed by such court or officer and if the procedure to be
followed in the exercise of such jurisdiction is not specifically pointed out by law or by these rules, any

suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said
law or rules." It bears repeating that what the Court restrained temporarily is the execution of its own
Decision to give it reasonable time to check its fairness in light of supervening events in Congress as
alleged by petitioner. The Court, contrary to popular misimpression, did not restrain the effectivity of a law
enacted by Congress.
1wphi1.nt

The more disquieting dimension of the submission of the public respondents that this Court has no
jurisdiction to restrain the execution of petitioner is that it can diminish the independence of the
judiciary. Since the implant of republicanism in our soil, our courts have been conceded the
jurisdiction to enforce their final decisions. In accord with this unquestioned jurisdiction, this Court
promulgated rules concerning pleading, practice and procedure which, among others, spelled out
the rules on execution of judgments. These rules are all predicated on the assumption that courts
have the inherent, necessary and incidental power to control and supervise the process of execution
of their decisions. Rule 39 governs execution, satisfaction and effects of judgments in civil cases.
Rule 120 governs judgments in criminal cases. It should be stressed that the power to promulgate
rules of pleading, practice and procedure was granted by our Constitutions to this Court to enhance
its independence, for in the words of Justice Isagani Cruz "without independence and integrity,
courts will lose that popular trust so essential to the maintenance of their vigor as champions of
justice." 9 Hence, our Constitutions continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this Court to promulgate rules concerning
pleading, practice and procedure was granted but it appeared to be co-existent with legislative power for it
was subject to the power of Congress to repeal, alter or supplement. Thus, its Section 13, Article VIII
provides:
Sec.13. The Supreme Court shall have the power to promulgate rules concerning
pleading, practice and procedure in all courts, and the admission to the practice of
law. Said rules shall be uniform for all courts of the same grade and shall not
diminish, increase, or modify substantive rights. The existing laws on pleading,
practice and procedure are hereby repealed as statutes, and are declared Rules of
Court, subject to the power of the Supreme Court to alter and modify the same. The
Congress have the power to repeal, alter or supplement the rules concerning
pleading, practice and procedure, and the admission to the practice of law in the
Philippines.
The said power of Congress, however, is not as absolute as it may appear on its surface. In In re
Cunanan 10Congress in the exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of 1953 11 which considered as a passing
grade, the average of 70% in the bar examinations after July 4, 1946 up to August 1951 and 71% in the
1952 bar examinations. This Court struck down the law as unconstitutional. In his ponencia, Mr. Justice
Diokno held that " . . . the disputed law is not a legislation; it is a judgment a judgment promulgated by
this Court during the aforecited years affecting the bar candidates concerned; and although this Court
certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this
Court, and not the legislative nor executive department, that may do so. Any attempt on the part of these
department would be a clear usurpation of its function, as is the case with the law in question." 12 The
venerable jurist further ruled: "It is obvious, therefore, that the ultimate power to grant license for the
practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of
permissive character, or as other authorities say, merely to fix the minimum conditions for the license." By
its ruling, this Court qualified the absolutist tone of the power of Congress to "repeal, alter or supplement
the rules concerning pleading, practice and procedure, and the admission to the practice of law in the
Philippines.
The ruling of this Court in In re Cunanan was not changed by the 1973 Constitution. For the 1973
Constitution reiterated the power of this Court "to promulgate rules concerning pleading, practice and

procedure in all courts, . . . which, however, may be repealed, altered or supplemented by the
Batasang Pambansa . . . ." More completely, Section 5(2)5 of its Article X provided:
xxx xxx xxx
Sec.5. The Supreme Court shall have the following powers.
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice,
and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which,
however, may be repealed, altered, or supplemented
by the Batasang Pambansa. Such rules shall provide
a simplified and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or
modify substantive rights.
Well worth noting is that the 1973 Constitution further strengthened the independence of the
judiciary by giving to it the additional power to promulgate rules governing the integration of the
Bar. 13
The 1987 Constitution molded an even stronger and more independent judiciary. Among others, it
enhanced the rule making power of this Court. Its Section 5(5), Article VIII provides:
xxx xxx xxx
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice
and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal
assistance to the underprivileged. Such rules shall
provide a simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the
Supreme Court.
The rule making power of this Court was expanded. This Court for the first time was given the power
to promulgate rules concerning the protection and enforcement of constitutional rights. The Court
was also granted for the first time the power to disapprove rules of procedure of special courts and
quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress
to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power
to promulgate rules of pleading, practice and procedure is no longer shared by this Court with

Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen
the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has
no jurisdiction to control the process of execution of its decisions, a power conceded to it and which
it has exercised since time immemorial.
To be sure, it is too late in the day for public respondents to assail the jurisdiction of this Court to
control and supervise the implementation of its decision in the case at bar. As aforestated, our
Decision became final and executory on November 6, 1998. The records reveal that after November
6, 1998, or on December 8, 1998, no less than the Secretary of Justice recognized the jurisdiction of
this Court by filing a Manifestation and Urgent Motion to compel the trial judge, the Honorable
Thelma A. Ponferrada, RTC, Br. 104, Quezon City to provide him ". . . a certified true copy of the
Warrant of Execution dated November 17, 1998 bearing the designated execution day of death
convict Leo Echegaray and allow (him) to reveal or announce the contents thereof, particularly the
execution date fixed by such trial court to the public when requested." The relevant portions of the
Manifestation and Urgent Motion filed by the Secretary of Justice beseeching this Court "to provide
the appropriate relief" state:
xxx xxx xxx
5. Instead of filing a comment on Judge Ponferrada's Manifestation
however, herein respondent is submitting the instant Manifestation
and Motion (a) to stress, inter alia, that the non-disclosure of the date
of execution deprives herein respondent of vital information
necessary for the exercise of his statutory powers, as well as renders
nugatory the constitutional guarantee that recognizes the people's
right to information of public concern, and (b) to ask this Honorable
Court to provide the appropriate relief.
6. The non-disclosure of the date of execution deprives herein
respondent of vital information necessary for the exercise of his
power of supervision and control over the Bureau of Corrections
pursuant to Section 39, Chapter 8, Book IV of the Administrative
Code of 1987, in relation to Title III, Book IV of such Administrative
Code, insofar as the enforcement of Republic Act No. 8177 and the
Amended Rules and Regulations to Implement Republic Act No.
8177 is concerned and for the discharge of the mandate of seeing to
it that laws and rules relative to the execution of sentence are
faithfully observed.
7. On the other hand, the willful omission to reveal the information
about the precise day of execution limits the exercise by the
President of executive clemency powers pursuant to Section 19,
Article VII (Executive Department) of the 1987 Philippine Constitution
and Article 81 of the Revised Penal Code, as amended, which
provides that the death sentence shall be carried out "without
prejudice to the exercise by the President of his executive powers at
all times." (Emphasis supplied) For instance, the President cannot
grant reprieve, i.e., postpone the execution of a sentence to a day
certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the absence of a
precise date to reckon with. The exercise of such clemency power, at
this time, might even work to the prejudice of the convict and defeat
the purpose of the Constitution and the applicable statute as when

the date at execution set by the President would be earlier than that
designated by the court.
8. Moreover, the deliberate non-disclosure of information about the
date of execution to herein respondent and the public violates
Section 7, Article III (Bill of Rights) and Section 28, Article II
(Declaration of Principles and State Policies) of the 1987 Philippine
Constitution which read:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development shall, be afforded the citizen, subject to such
limitations as may be provided by law.
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
transactions involving public interest.
9. The "right to information" provision is self-executing. It supplies
"the rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of the
Constitution without need for any ancillary act of the Legislature (Id.,
at p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy
of full public disclosure of all transactions involving public interest
(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized
that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III, Sec. 7 have become operative and
enforceable by virtue of the adoption of the New Charter." (Decision
of the Supreme Court En Banc in Legaspi v. Civil Service
Commission, 150 SCRA 530, 534-535 [1987].
The same motion to compel Judge Ponferrada to reveal the date of execution of petitioner
Echegaray was filed by his counsel, Atty. Theodore Te, on December 7, 1998. He invoked his client's
right to due process and the public's right to information. The Solicitor General, as counsel for public
respondents, did not oppose petitioner's motion on the ground that this Court has no more
jurisdiction over the process of execution of Echegaray. This Court granted the relief prayed for by
the Secretary of Justice and by the counsel of the petitioner in its Resolution of December 15, 1998.
There was not a whimper of protest from the public respondents and they are now estopped from
contending that this Court has lost its jurisdiction to grant said relief. The jurisdiction of this Court
does not depend on the convenience of litigants.
II
Second. We likewise reject the public respondents' contention that the "decision in this case having
become final and executory, its execution enters the exclusive ambit of authority of the executive

department . . .. By granting the TRO, the Honorable Court has in effect granted reprieve which is an
executive function." 14 Public respondents cite as their authority for this proposition, Section 19, Article VII
of the Constitution which reads:
Except in cases of impeachment, or as otherwise provided in this Constitution, the
President may grant reprieves, commutations, and pardons, and remit fines and
forfeitures after conviction by final judgment. He shall also have the power to grant
amnesty with the concurrence of a majority of all the members of the Congress.
The text and tone of this provision will not yield to the interpretation suggested by the public
respondents. The provision is simply the source of power of the President to grant reprieves,
commutations, and pardons and remit fines and forfeitures after conviction by final judgment. It also
provides the authority for the President to grant amnesty with the concurrence of a majority of all the
members of the Congress. The provision, however, cannot be interpreted as denying the power of
courts to control the enforcement of their decisions after their finality. In truth, an accused who has
been convicted by final judgment still possesses collateral rights and these rights can be claimed in
the appropriate courts. For instance, a death convict who become insane after his final conviction
cannot be executed while in a state of insanity. 15 As observed by Antieau, "today, it is generally
assumed that due process of law will prevent the government from executing the death sentence upon a
person who is insane at the time of execution." 16 The suspension of such a death sentence is
undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve
though its effects is the same the temporary suspension of the execution of the death convict. In the
same vein, it cannot be denied that Congress can at any time amend R.A. No. 7659 by reducing the
penalty of death to life imprisonment. The effect of such an amendment is like that of commutation of
sentence. But by no stretch of the imagination can the exercise by Congress of its plenary power to
amend laws be considered as a violation of the power of the President to commute final sentences of
conviction. The powers of the Executive, the Legislative and the Judiciary to save the life of a death
convict do not exclude each other for the simple reason that there is no higher right than the right to life.
Indeed, in various States in the United States, laws have even been enacted expressly granting courts
the power to suspend execution of convicts and their constitutionality has been upheld over arguments
that they infringe upon the power of the President to grant reprieves. For the public respondents therefore
to contend that only the Executive can protect the right to life of an accused after his final conviction is to
violate the principle of co-equal and coordinate powers of the three branches of our government.
III
Third. The Court's resolution temporarily restraining the execution of petitioner must be put in its
proper perspective as it has been grievously distorted especially by those who make a living by
vilifying courts. Petitioner filed his Very Urgent Motion for Issuance of TRO on December 28, 1998 at
about 11:30 p.m. He invoked several grounds, viz: (1) that his execution has been set on January 4,
the first working day of 1999; (b) that members of Congress had either sought for his executive
clemency and/or review or repeal of the law authorizing capital punishment; (b.1) that Senator
Aquilino Pimentel's resolution asking that clemency be granted to the petitioner and that capital
punishment be reviewed has been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly declared they would seek a review of
the death penalty law; (b.3) Senator Paul Roco has also sought the repeal of capital punishment,
and (b.4) Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen are demanding
review of the same law.
When the Very Urgent Motion was filed, the Court was already in its traditional recess and would
only resume session on January 18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1991 17 at 10. a.m. to deliberate on petitioner's Very Urgent
Motion. The Court hardly had five (5) hours to resolve petitioner's motion as he was due to be executed at

3 p.m. Thus, the Court had the difficult problem of resolving whether petitioner's allegations about the
moves in Congress to repeal or amend the Death Penalty Law are mere speculations or not. To the
Court's majority, there were good reasons why the Court should not immediately dismiss petitioner's
allegations as mere speculations and surmises. They noted that petitioner's allegations were made in a
pleading under oath and were widely publicized in the print and broadcast media. It was also of judicial
notice that the 11th Congress is a new Congress and has no less than one hundred thirty (130) new
members whose views on capital punishment are still unexpressed. The present Congress is therefore
different from the Congress that enacted the Death Penalty Law (R.A. No. 7659) and the Lethal Injection
Law (R.A. No. 8177). In contrast, the Court's minority felt that petitioner's allegations lacked clear factual
bases. There was hardly a time to verify petitioner's allegations as his execution was set at 3 p.m. And
verification from Congress was impossible as Congress was not in session. Given these constraints, the
Court's majority did not rush to judgment but took an extremely cautious stance by temporarily restraining
the execution of petitioner. The suspension was temporary "until June 15, 1999, coeval with the
constitutional duration of the present regular session of Congress, unless it sooner becomes certain that
no repeal or modification of the law is going to be made." The extreme caution taken by the Court was
compelled, among others, by the fear that any error of the Court in not stopping the execution of the
petitioner will preclude any further relief for all rights stop at the graveyard. As life was at, stake, the Court
refused to constitutionalize haste and the hysteria of some partisans. The Court's majority felt it needed
the certainty that the legislature will not petitioner as alleged by his counsel. It was believed that law and
equitable considerations demand no less before allowing the State to take the life of one its citizens.

The temporary restraining order of this Court has produced its desired result, i.e., the crystallization
of the issue whether Congress is disposed to review capital punishment. The public respondents,
thru the Solicitor General, cite posterior events that negate beyond doubt the possibility that
Congress will repeal or amend the death penalty law. He names these supervening events as
follows:
xxx xxx xxx
a. The public pronouncement of President Estrada that he will veto any law imposing
the death penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are against the repeal of the
law;
c. The fact that Senator Roco's resolution to repeal the law only bears his signature and
that of Senator Pimentel. 18
In their Supplemental Motion to Urgent Motion for Reconsideration, the Solicitor General cited House
Resolution No. 629 introduced by Congressman Golez entitled "Resolution expressing the sense of
the House of Representatives to reject any move to review R.A. No. 7659 which provided for the
reimposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of
the position of the House of Representative on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty law." The Golez resolution was
signed by 113 congressman as of January 11, 1999. In a marathon session yesterday that extended
up 3 o'clock in the morning, the House of Representative with minor, the House of Representative
with minor amendments formally adopted the Golez resolution by an overwhelming vote. House
Resolution No. 25 expressed the sentiment that the House ". . . does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will not request Congress to ratify
the Second Protocol in review of the prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has served its legal and humanitarian
purpose.

A last note. In 1922, the famous Clarence Darrow predicted that ". . . the question of capital
punishment had been the subject of endless discussion and will probably never be settled so long as
men believe in punishment." 19 In our clime and time when heinous crimes continue to be unchecked,
the debate on the legal and moral predicates of capital punishment has been regrettably blurred by
emotionalism because of the unfaltering faith of the pro and anti-death partisans on the right and
righteousness of their postulates. To be sure, any debate, even if it is no more than an exchange of
epithets is healthy in a democracy. But when the debate deteriorates to discord due to the overuse of
words that wound, when anger threatens to turn the majority rule to tyranny, it is the especial duty of this
Court to assure that the guarantees of the Bill of Rights to the minority fully hold. As Justice Brennan
reminds us ". . . it is the very purpose of the Constitution and particularly the Bill of Rights to declare
certain values transcendent, beyond the reach of temporary political majorities." 20 Man has yet to invent a
better hatchery of justice than the courts. It is a hatchery where justice will bloom only when we can
prevent the roots of reason to be blown away by the winds of rage. The flame of the rule of law cannot be
ignited by rage, especially the rage of the mob which is the mother of unfairness. The business of courts
in rendering justice is to be fair and they can pass their litmus test only when they can be fair to him who
is momentarily the most hated by society. 21
IN VIEW WHEREOF, the Court grants the public respondents' Urgent Motion for Reconsideration
and Supplemental Motion to Urgent Motion for Reconsideration and lifts the Temporary Restraining
Order issued in its Resolution of January 4, 1999.
The Court also orders respondent trial court judge (Hon. Thelma A. Ponferrada, Regional Trial Court,
Quezon City, Branch 104) to set anew the date for execution of the convict/petitioner in accordance
with applicable provisions of law and the Rules of Court, without further delay.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Kapunan, Mendoza, Martinez, Quisumbing, Purisima and
Pardo, JJ., concur.
Vitug and Panganiban, JJ., Please see Separate Opinion.
Buena and Gonzaga-Reyes, JJ., took no part.

Separate Opinions

VITUG, J., separate opinion;


Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect
and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.
The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.
The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend
the execution of a final judgment when it becomes imperative in the higher interest of justice or when
supervening events warrant it. 1 Certainly, this extraordinary relief cannot be denied any man, whatever
might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs.
Judge of First Instance of Cavite, 2 should be instructive. Thus
This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.
Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus
est officio suo, and its part is ended, if however a circumstance arises that ought to
delay the execution, there is an imperative duty to investigate the emergency and to
order a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.
The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely 3 re-examination by Congress of the death penalty law, then I can appreciate why the
majority of the Justices on the Court feel rightly bound even now to lift the TRO.
I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit, 4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:
The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
already provided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating
death or, in the crime of rape, when the offended party is callously humiliated or even
brutally killed by the accused. The indiscriminate imposition of the death penalty
could somehow constrain courts to apply, perhaps without consciously meaning to,
stringent standards for conviction, not too unlikely beyond what might normally be
required in criminal cases, that can, in fact, result in undue exculpation of offenders
to the great prejudice of victims and society.
Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;


I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.
Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.
I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.
Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.
Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.
FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.
G.R. No. 117472 February 7, 1997
PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.
Supplemental Motion for Reconsideration
SEPARATE OPINION
Death Penalty Law Unconstitutional
In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act. No.
7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original Motion for
Reconsideration filed by his previous counsel, 3 this transcendental issue was nor brought up. Hence, it
was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4

The Constitution Abolished Death Penalty


Sec. 19, Article III of the 1987 Constitution provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinouscrimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied)
The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and reduced
"any death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect
(it bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to
the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he
majority voted for the constitutional abolition of the death penalty."
Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the 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 frames of the
Constitution when they approved the provision and made it a part of the Bill of Rights." With such abolition
as a premise, restoration thereof becomes an exception to a constitutional mandate. Being an exception
and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally
in favor of the people. 8 In this light, RA 7659 enjoys no presumption of constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress) 9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward" 10): the authority of Congress to
"provide for it" is not absolute. Rather, it is strictly limited:
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 lawmaking prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA 7659 11 to "provide for it" (the
death penalty) (1) by amending certain provisions of the Revised Penal Code; 12 (2) by incorporating a
new article therein; 13 and (3) by amending certain special laws. 14
But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.
Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.
The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it
by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.
Heinous Crimes
To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:
WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.
In my humble view, however, the foregoing clause is clearly an insufficient definition or
characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.
Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16
In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under
said law were already to punishable by the Revised Penal Code 18 and by special laws.
During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.
By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal
laws and 2) make its restoration possible only under and subject to stringent conditions is evident
not only from the language of the Constitution but also from the charter debates on this matter.
The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note
that the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal
murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available
information shows that, when deliberating on "heinousness", the Constitutional Commission did not have
in mind the offenses already existing and already penalized with death. I also believe that the
heinousness clause requires that:
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 out evinces
a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness as to
demonstrate its heinousness.21
For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.
Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But
such effort was at best feeble and inconsequential. It should be remembered that every word or phrase in
the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I
believe that the compelling reasons and the characterization of heinousness cannot be done wholesale
but must shown for each and every crime, individually and separately.
The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .
MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.
MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?
MR. GARCIA (P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.
MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.
xxx xxx xxx
In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of 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 photocopy of this report.
From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.
But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.
In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness
the relationship between the prescription of the death penalty for certain offenses and the commission or
non-commission thereof. This is a theory that can be debated on and on, 27 in the same manner that
another proposition that the real deterrent to crime is the certainty of immediate arrest, prosecution
and conviction of the culprit without unnecessary risk, expense and inconvenience to the victim, his heirs
or his witnesses can be argued indefinitely. 28 This debate can last till the academics grow weary of the
spoken word, but it would not lessen the constitutionally-imposed burden of Congress to act within the
"heinousness" and "compelling reasons" limits of its death-prescribing power.

Other Constitutional Rights


Militate Against RA 7659
It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should like any other guarantee in favor of the accused be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor of
the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just
crimes but capital crimes!
So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life life at its fullest, life in dignity and honor is not only reiterated by the
1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence, the
Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn from the
moment of conception 34 and establishes the people's rights to health, a balanced ecology and
education. 35
This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.
Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.
This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:
1. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995, the
number rose to 90; an average of seven (7) convicts per month; double the monthly
average of capital sentences imposed the prior year. From January to June 1996, the
number of death penalty convicts reached 72, an average of 12 convicts per month,
almost double the monthly average of capital sentences imposed in 1995.
2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.

3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
4. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
(14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
5. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
6. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.
The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.
To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense unfounded, to be
sure, but unhealthy nevertheless of the unequal balance of the scales of justice.
Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socio-

economic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far as
the disadvantaged are concerned, the law would still be complex and written in a strange and
incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and employment
opportunities, are consequently confined to living, working and subsisting in less-than-ideal
environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.
However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.
Epilogue
In sum, I respectfully submit that:
(1) The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.
(2) The Charter effectively granted a new right: the constitution right against the death penalty, which
is really a species of the right to life.
(3) Any law reviving the capital penalty must be strictly construed against the State and liberally in
favor of the accused because such a stature denigrates the Constitution, impinges on a basic right
and tends to deny equal justice to the underprivileged.
(4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierlytreated or brushed aside.
(5) Congressional power 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 not just for all crimes generally and collectively.
"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the death
penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 "punishment
must be carefully evaluated and decided upon, and ought not to go to the extreme of executing the
offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to
defend society . . . (which is) very rare, if not practically 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 reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.
In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?
I respectfully submit it has not.
WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.
I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.
Separate Opinions

VITUG, J., separate opinion;


Let me state at the outset that I have humbly maintained that Republic Act No. 7659, insofar as it
prescribes the death penalty, falls short of the strict norm set forth by the Constitution. I and some of
my brethren on the Court, who hold similarly, have consistently expressed this stand in the
affirmance by the Court of death sentences imposed by Regional Trial Courts.
In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition a
temporary restraining order ("TRO") because, among other things, of what had been stated to be
indications that Congress would re-examine the death penalty law. It was principally out of respect

and comity to a co-equal branch of the government, i.e., to reasonably allow it that opportunity if truly
minded, that motivated the Court to grant, after deliberation, a limited time for the purpose.
The Court, it must be stressed, did not, by issuing the TRO, thereby reconsider its judgment
convicting the accused or recall the imposition of the death penalty.
The doctrine has almost invariably been that after a decision becomes final and executory, nothing
else is further done except to see to its compliance since for the Court to adopt otherwise would be
to put no end to litigations The rule notwithstanding, the Court retains control over the case until the
full satisfaction of the final judgment conformably with established legal processes. Hence, the Court
has taken cognizance of the petition assailing before it the use of lethal injection by the State to carry
out the death sentence. In any event, jurisprudence teaches that the rule of immutability of final and
executory judgments admits of settled exceptions. Concededly, the Court may, for instance, suspend
the execution of a final judgment when it becomes imperative in the higher interest of justice or when
supervening events warrant it. 1 Certainly, this extraordinary relief cannot be denied any man, whatever
might be his station, whose right to life is the issue at stake. The pronouncement in Director of Prisons vs.
Judge of First Instance of Cavite, 2 should be instructive. Thus
This Supreme Court has repeatedly declared in various decisions, which constitute
jurisprudence on the subject, that in criminal cases, after the sentence has been
pronounced and the period for reopening the same has elapsed, the court can not
change or after its judgment, as its jurisdiction has terminated, functus est officio suo,
according to the classical phrase. When in cases of appeal or review the cause has
been returned thereto for execution, in the event that the judgment has been
affirmed, it performs a ministerial duty in issuing the proper order. But it does not
follow from this cessation of functions on the part of the court with reference to the
ending of the cause that the judicial authority terminates by having then passed
completely to the executive. The particulars of the execution itself, which are
certainly not always included in the judgment and writ of execution, in any event are
absolutely under the control of the judicial authority, while the executive has no
power over the person of the convict except to provide for carrying out the penalty
and to pardon.
Getting down to the solution of the question in the case at bar, which is that of
execution of a capital sentence, it must be accepted as a hypothesis that
postponement of the date can be requested. There can be no dispute on this point. It
is a well-known principle that, notwithstanding the order of execution and the
executory nature thereof on the date set or at the proper time, the date therefor can
be postponed, even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command of the King; (2) by
discretion (arbitrio) of the court; and (3) by mandate of the law. It is sufficient to state
this principle of the common law to render impossible the assertion in absolute terms
that after the convict has once been placed in jail the trial court can not reopen the
case to investigate the facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even after the date of the
execution has been fixed, and notwithstanding the general rule that after the Court of
First Instance has performed its ministerial duty of ordering the execution, functus
est officio suo, and its part is ended, if however a circumstance arises that ought to
delay the execution, there is an imperative duty to investigate the emergency and to
order a postponement . . ..

In fine, the authority of the Court to see to the proper execution of its final judgment, the power of the
President to grant pardon, commutation or reprieve, and the prerogative of Congress to repeal or
modify the law that could benefit the convicted accused are not essentially preclusive of one another
nor constitutionally incompatible and may each be exercised within their respective spheres and
confines. Thus, the stay of execution issued by the Court would not prevent either the President from
exercising his pardoning power or Congress from enacting a measure that may be advantageous to
the adjudged offender.
The TRO of this Court has provided that it shall be lifted even before its expiry date of 15 June 1999,
"coeval with the duration of the present regular session of Congress," if it "sooner becomes certain
that no repeal or modification of the law is going to be made." The "Urgent Motion for
Reconsideration" filed by the Office of the Solicitor General states that as of the moment, "certain
circumstances/supervening events (have) transpired to the effect that the repeal or modification of
the law imposing death penalty has become nil . . .." If, indeed, it would be futile to yet expect any
chance for a timely 3 re-examination by Congress of the death penalty law, then I can appreciate why the
majority of the Justices on the Court feel rightly bound even now to lift the TRO.
I am hopeful, nevertheless, that Congress will in time find its way clear to undertaking a most
thorough and dispassionate re-examination of the law not so much for its questioned wisdom as for
the need to have a second look at the conditions sine qua non prescribed by the Constitution in the
imposition of the death penalty. In People vs. Masalihit, 4 in urging, with all due respect, Congress to
consider a prompt re-examination of the death penalty law, I have said:
The determination of when to prescribe the death penalty lies, in the initial instance,
with the law-making authority, the Congress of the Philippines, subject to the
conditions that the Constitution itself has set forth; viz: (1) That there must
be compelling reasons to justify the imposition of the death penalty; and (2) That the
capital offense must involve a heinous crime. It appears that the fundamental law did
not contemplate a simple 'reimposition' of the death penalty to offenses theretofore
already provided in the Revised Penal Code or, let alone, just because of it. The term
'compelling reasons' would indicate to me that there must first be a marked change in
the milieu from that which has prevailed at the time of adoption of the 1987
Constitution, on the one hand, to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand, that would make it distinctively
inexorable to allow the re-imposition of the death penalty. Most importantly, the
circumstances that would characterize the 'heinous nature' of the crime and make it
so exceptionally offensive as to warrant the death penalty must be spelled out with
great clarity in the law, albeit without necessarily precluding the Court from exercising
its power of judicial review given the circumstances of each case. To venture, in the
case of murder, the crime would become 'heinous' within the Constitutional concept,
when, to exemplify, the victim is unnecessarily subjected to a painful and excruciating
death or, in the crime of rape, when the offended party is callously humiliated or even
brutally killed by the accused. The indiscriminate imposition of the death penalty
could somehow constrain courts to apply, perhaps without consciously meaning to,
stringent standards for conviction, not too unlikely beyond what might normally be
required in criminal cases, that can, in fact, result in undue exculpation of offenders
to the great prejudice of victims and society.
Today, I reiterate the above view and until the exacting standards of the Constitution are clearly met
as so hereinabove expressed, I will have to disagree, most respectfully, with my colleagues in the
majority who continue to hold the presently structured Republic Act No. 7659 to be in accord with the
Constitution, an issue that is fundamental, constant and inextricably linked to the imposition each
time of the death penalty and, like the instant petition, to the legal incidents pertinent thereto.

Accordingly, I vote against the lifting of the restraining order of the Court even as I, like everyone
else, however, must respect and be held bound by the ruling of the majority.

PANGANIBAN, J., separate opinion;


I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the
disputed Temporary Restraining Order (TRO) on January 4, 1999. I will not repeat its well-reasoned
disquisition. I write only to explain my vote in the context of the larger issue of the death penalty.
Since the solicitor general has demonstrated that Congress will not repeal or amend RA 7659 during
its current session which ends on June 15, 1999 and that, in any event, the President will veto any
such repeal or amendment, the TRO should by its own terms be deemed lifted now. However, my
objections to the imposition of the death penalty transcend the TRO and permeate its juridical
essence.
I maintain my view that RA 7659 (the Death Penalty Law) is unconstitutional insofar as some parts
thereof prescribing the capital penalty fail to comply with the requirements of "heinousness" and
"compelling reasons" prescribed by the Constitution of the Philippines. * This I have repeatedly
stated in my Dissenting Opinion in various death cases decided by the Court, as well as during the
Court's deliberation on this matter on January 4, 1999. For easy reference, I hereby attach a copy of
my Dissent promulgated on February 7, 1997.
Consequently, I cannot now vote to lift TRO, because to do so would mean the upholding and
enforcement of law (or the relevant portions thereof) which, I submit with all due respect, is
unconstitutional and therefore legally nonexistent. I also reiterate that, in my humble opinion, RA
8177 (the Lethal Injection Law) is likewise unconstitutional since it merely prescribes the manner in
which RA 7659 ( the Death Penalty Law) is to implemented.
Having said that, I stress, however, that I defer to the rule of law and will abide by the ruling of the
Court that both RA 7659 and RA 8177 are constitutional and that death penalty should, by majority
vote, be implemented by means of lethal injection.
FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion for Reconsideration.
G.R. No. 117472 February 7, 1997
PEOPLE OF THE PHILIPPINES vs. LEO ECHEGARAY y PILO.
Supplemental Motion for Reconsideration
SEPARATE OPINION
Death Penalty Law Unconstitutional
In his Supplemental Motion for Reconsideration 1 dated August 22, 1996 filed by his newly-retained
counsel, 2 the accused raises for the first time a very crucial ground for his defense: that Republic Act. No.
7659, the law reimposing the death penalty, is unconstitutional. In the Brief and (original Motion for
Reconsideration filed by his previous counsel, 3 this transcendental issue was nor brought up. Hence, it
was not passed upon by this Court in its Decision affirming the trial court's sentence of death. 4

The Constitution Abolished Death Penalty


Sec. 19, Article III of the 1987 Constitution provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless for compelling
reasons involving heinouscrimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied)
The second and third sentences of the above provision are new and had not been written in the
1935, 1973 or even in the 1986 "Freedom Constitution." They proscribe the imposition 5 of the death
penalty "unless for compelling reasons involving heinous crimes, Congress provides for it," and reduced
"any death penalty already imposed" to reclusion perpetua. The provision has both a prospective aspect
(it bars the future imposition of the penalty) and a retroactive one (it reduces imposed capital sentences to
the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the Constitution did not merely suspend the
imposition of the death penalty, but in fact completely abolished it from the statute books. The
automatic commutation or reduction to reclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws and thus may longer be carried
out. This is the clear intent of the framers of our Constitution. As Comm. Bernas ex-claimed, 6 "(t)he
majority voted for the constitutional abolition of the death penalty."
Citing this and other similar pronouncements of the distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized, 7 "It is thus clear that when Fr. Bernas sponsored the
provision regarding the 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 frames of the
Constitution when they approved the provision and made it a part of the Bill of Rights." With such abolition
as a premise, restoration thereof becomes an exception to a constitutional mandate. Being an exception
and thus in derogation of the Constitution, it must then be strictly construed against the State and liberally
in favor of the people. 8 In this light, RA 7659 enjoys no presumption of constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1) effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to restore it at some future time to enable or empower
courts to reimpose it on condition that it (Congress) 9 finds "compelling reasons, involving heinous
crimes." The language of the Constitution is emphatic (even if "awkward" 10): the authority of Congress to
"provide for it" is not absolute. Rather, it is strictly limited:
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 lawmaking prerogative to restore the death penalty. For clarity's sake, may I emphasize that Congress,
by law; prescribes the death penalty on certain crimes; and courts, by their decisions, impose it on
individual offenders found guilty beyond reasonable doubt of committing said crimes.

In the exercise of this fundamental mandate, Congress enacted RA


7659 11 to "provide for it" (the death penalty) (1) by amending certain provisions of the Revised Penal
Code; 12 (2) by incorporating a new article therein; 13 and (3) by amending certain special laws. 14
But RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or justify the reasons for the more sever
sanction, either collectively for all the offenses or individually for each of them.
Generally, it merely reinstated the concept of and the method by which the death penalty had been
imposed until February 2, 1987, when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.
The basic question then is: In enacting RA 7659, did Congress exceed the limited authority granted it
by the Constitution? More legally put: It reviving the death penalty, did Congress act with grave
abuse of discretion or in excess of the very limited power or jurisdiction conferred on it by Art. III,
Sec. 19? The answer, I respectfully submit, is YES.
Heinous Crimes
To repeal, while he Constitution limited the power of Congress to prescribe the death penalty ONLY
to "heinous" crimes, it did not define or characterize the meaning of "heinous". Neither did Congress.
As already stated, RA 7659 itself merely selected some existing crimes for which it prescribed death
as an applicable penalty. It did not give a standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that Congress was only too well aware of its
constitutionally limited power. In deference thereto, it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:
WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.
In my humble view, however, the foregoing clause is clearly an insufficient definition or
characterization of what a heinous crime is. It simply and gratuitously declared certain crimes to be
"heinous" without adequately justifying its bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of heinousness can be determined. Calling the crimes
"grievous, odious and hateful" is not a substitute for an objective juridical definition. Neither is the
description "inherent or manifest wickedness, viciousness, atrocity and perversity." Describing blood
as blue does not detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.
Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its
intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is
clear and unambiguous, the preamble can neither expand nor restrict its operation, much less
prevail over its text. 15 In this case, it cannot be the authoritative source to show compliance with the
Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the presence or absence of aggravating
circumstances. 16
In other words, it just reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery, 17 no new crimes were introduced by RA 7659. The offenses punished by death under
said law were already to punishable by the Revised Penal Code 18 and by special laws.
During the debate on Senate Bill No. 891 which later became RA 7659, Sen. Jose Lina, in answer to
a question of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.
By merely reimposing capital punishment on the very same crimes which were already penalized
with death prior to the charter's effectivity, Congress I submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe
death for these very same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death penalty from our criminal
laws and 2) make its restoration possible only under and subject to stringent conditions is evident
not only from the language of the Constitution but also from the charter debates on this matter.
The critical phrase "unless for compelling reasons involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining what possible crimes could qualify as heinous,
he and Comm. Jose Suarez agreed on "organized murder" or "brutal murder of a rape victim". 20 Note
that the honorable commissioners did not just say "murder" but organized murder; not just rape but brutal
murder of a rape victim. While the debates were admittedly rather scanty, I believe that the available
information shows that, when deliberating on "heinousness", the Constitutional Commission did not have
in mind the offenses already existing and already penalized with death. I also believe that the
heinousness clause requires that:
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 out
evinces a degree or magnitude of extreme violence, evil, cruelty, atrocity, viciousness
as to demonstrate its heinousness.21
For this purpose, Congress could enact an entirely new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.
Compelling Reasons

Quite apart from requiring the attendant element of heinousness, the Constitution also directs
Congress to determine "compelling reasons" for the revival of the capital penalty. It is true that
paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt at meeting this requirement. But
such effort was at best feeble and inconsequential. It should be remembered that every word or phrase in
the Constitution is sacred and should never be ignored, cavalierly-treated or brushed aside. Thus, I
believe that the compelling reasons and the characterization of heinousness cannot be done wholesale
but must shown for each and every crime, individually and separately.
The words "compelling reasons" were included in the Charter because, in the words of Comm.
Monsod, "in the future, circumstances may arise which we should not preclude today . . . and that
the conditions and the situation (during the deliberations of the Constitutional Commission) might
change for very specific reasons" requiring the return of the constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659, Congressman Pablo
Garcia, in answer to questions raised by Representative Edcel Lagman tried to explain these
compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons now, Mr. Speaker? . . .
MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.
MR. LAGMAN. So the compelling reason which the distinguished sponsor would like
to justify or serve as an anchor for the justification of the reimposition of the death
penalty is the alleged worsening peace and order situation. The Gentleman claims
that is one the compelling reasons. But before we dissent this particular "compelling
reason," may we know what are the other compelling reasons, Mr. Speaker?
MR. GARCIA (P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice was
not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstances after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.
MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it refers
to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified it?

MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this time,
justice demands that the appropriate penalty must be meted out for those who have
committed heinous crimes.
xxx xxx xxx
In short, Congressman Garcia invoked the preambular justifications of "worsening peace and order"
and "justice". With all due respect I submit that these grounds are not "compelling" enough to justify
the revival of 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 photocopy of this report.
From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in 1989. It
still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.
But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991.
In a further attempt to show compelling reasons, the proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have been submitted to show with any conclusiveness
the relationship between the prescription of the death penalty for certain offenses and the commission or
non-commission thereof. This is a theory that can be debated on and on, 27 in the same manner that
another proposition that the real deterrent to crime is the certainty of immediate arrest, prosecution
and conviction of the culprit without unnecessary risk, expense and inconvenience to the victim, his heirs
or his witnesses can be argued indefinitely. 28 This debate can last till the academics grow weary of the
spoken word, but it would not lessen the constitutionally-imposed burden of Congress to act within the
"heinousness" and "compelling reasons" limits of its death-prescribing power.
Other Constitutional Rights

Militate Against RA 7659


It should be emphasized that the constitutional ban against the death penalty is included in our Bill of
Rights. As such, it should like any other guarantee in favor of the accused be zealously
protected, 29 and any exception thereto meticulously screened. Any doubt should be resolved in favor of
the people, particularly where the right pertains to persons accused of crimes. 30 Here the issue is not just
crimes but capital crimes!
So too, all our previous Constitutions, including the first one ordained at Malolos, guarantee that
"(n)o person shall be deprived of life, liberty or property without due process of law." 31 This primary
right of the people to enjoy life life at its fullest, life in dignity and honor is not only reiterated by the
1987 Charter but is in fact fortified by its other pro-life and pro-human rights provisions. Hence, the
Constitution values the dignity of every human person and guarantees full respect for human
rights, 32 expressly prohibits any form of torture 33 which is arguably a lesser penalty than death,
emphasizes the individual right to life by giving protection to the life of the mother and the unborn from the
moment of conception 34 and establishes the people's rights to health, a balanced ecology and
education. 35
This Constitutional explosion of concern for man more than property for people more than the state,
and for life more than mere existence augurs well for the strict application of the constitutional limits
against the revival of death penalty as the final and irreversible exaction of society against its
perceived enemies.
Indeed, volumes have been written about individual rights to free speech. assembly and even
religion. But the most basic and most important of these rights is the right to life. Without life, the
other rights cease in their enjoyment, utility and expression.
This opinion would not be complete without a word on the wrenching fact that the death penalty
militates against the poor, the powerless and the marginalized. The "Profile of 165 Death Row
Convicts" submitted by the Free Legal Assistance Group 36 highlights this sad fact:
1. Since the reimposition of the death penalty, 186 persons 37 have been sentenced to
death. At the end of 1994, there were 24 death penalty convicts, at the end of 1995, the
number rose to 90; an average of seven (7) convicts per month; double the monthly
average of capital sentences imposed the prior year. From January to June 1996, the
number of death penalty convicts reached 72, an average of 12 convicts per month,
almost double the monthly average of capital sentences imposed in 1995.
2. Of the 165 convicts polled, approximately twenty one percent (21%) earn between
P200 to P2,900 monthly; while approximately twenty seven percent (27%) earn
between P3,000 to P3,999 monthly. Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between P4,000 to P4,999, four percent
(4%) earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four percent (4%),
those earning P15,000 and above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while approximately two percent (2%) earn
subsistence wages with another five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how much they earn in a month.
3. Thus, approximately two-thirds of the convicts, about 112 of them, earn below the
government-mandated minimum monthly wage of P4,290; ten (10) of these earn
below the official poverty line set by government. Twenty six (26) earn between

P4,500.00 and P11,0000.00 monthly, indicating they belong to the middle class; only
one (1) earns P30.000.00 monthly. Nine (9) convicts earn variable income or earn on
a percentage or allowance basis; fifteen (15) convicts do not know or are unsure of
their monthly income. Twenty two (22) convicts earn nothing at all.
4. In terms of occupation, approximately twenty one percent (21%) are agricultural
workers or workers in animal husbandry; of these thirty (30), or almost one-fifth
thereof, are farmers. Thirty five percent (35%) are in the transport and construction
industry, with thirty one (31) construction workers or workers in allied fields
(carpentry, painting, welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them drivers.
Eighteen percent (18%) are in clerical, sales and service industries, with fourteen
(14) sales workers (engaged in buy and sell or fish, cigarette or rice vendors), twelve
(12) service workers (butchers, beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk) About four percent (4%) are government workers,
with six (6) persons belonging to the armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and executives comprise only three percent
(3%), nine percent (9%) are unemployed.
5. None of the DRC's use English as their medium of communication. About forty four
percent (44%), or slightly less than half speak and understand Tagalog; twenty six
percent (26%), or about one-fourth, speak and understand Cebuano. The rest speak
and understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand Niponggo.
6. Approximately twelve percent (12%) graduated from college, about forty seven
percent (47%) finished varying levels of elementary education with twenty seven (27)
graduating from elementary. About thirty five percent (35%), fifty eight (58) convicts,
finished varying levels of high school, with more than half of them graduating from
high school. Two (2) convicts finished vocational education; nine (9) convicts did not
study at all.
The foregoing profile based on age, language and socio-economic situations sufficiently
demonstrates that RA 7659 has militated against the poor and the powerless in society those who
cannot afford the legal services necessary in capital crimes, where extensive preparation,
investigation, research and presentation are required. The best example to shoe the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was woefully omitted in
the proceedings in the trial court and even before this Court until the Free legal Assistance Group
belatedly brought it up in the Supplemental Motion for Reconsideration.
To the poor and unlettered, it is bad enough that the law is complex and written in a strange,
incomprehensible language. Worse still, judicial proceedings are themselves complicated,
intimidating and damning. The net effect of having a death penalty that is imposed more often than
not upon the impecunious is to engender in the minds of the latter, a sense unfounded, to be
sure, but unhealthy nevertheless of the unequal balance of the scales of justice.
Most assuredly, it may be contended that the foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be misleading, and that regardless of the socioeconomic profile of the DRCs, the law reviving capital punishment does not in any way single out or
discriminate against the poor, the unlettered or the underprivileged. To put it in another way, as far as
the disadvantaged are concerned, the law would still be complex and written in a strange and

incomprehensible language, and judicial proceedings complicated and intimidating, whether the
ultimate penalty involved be life (sentence) or death. Another aspect of the whole controversy is that,
whatever the penalties set by law, it seems to me that there will always be certain class or classes of
people in our society who, by reason of their poverty, lack of educational attainment and employment
opportunities, are consequently confined to living, working and subsisting in less-than-ideal
environments, amidst less-than-genteel neighbors similarly situated as themselves, and are
therefore inherently more prone to be involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death penalty neither improves nor worsens
their lot substantially. Or, to be more precise, such law may even be said to help improve their
situation (at least in theory) by posing a much stronger deterrent to the commission of heinous
crimes.
However, such a viewpoint simply ignores the very basic differences that exist in the situations of the
poor and the non-poor. Precisely because the underprivileged are what they are, they require and
deserve a greater degree of protection and assistance from our laws and Constitution, and from the
courts and the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think, simply that
everyone ultimately wants to better himself and that we cannot better ourselves individually to any
significant degree if we are unable to advance as an entire people and nation. All the pro-poor
provisions of the Constitution point in this direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law, I submit, has no place in our legal, judicial and
constitutional firmament.
Epilogue
In sum, I respectfully submit that:
1. The 1987 Constitution abolished the death penalty from our statute books. It did not merely
suspend or prohibit its imposition.
2. The Charter effectively granted a new right: the constitution right against the death penalty,
which is really a species of the right to life.
3. Any law reviving the capital penalty must be strictly construed against the State and liberally
in favor of the accused because such a stature denigrates the Constitution, impinges on a
basic right and tends to deny equal justice to the underprivileged.
4. Every word or phrase in the Constitution is sacred and should never be ignored, cavalierlytreated or brushed aside.
5. Congressional power 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".
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.
1. In every law reviving the capital penalty, the heinousness and compelling reasons must be
set out for each and every crime, and not just for all crimes generally and collectively.
"Thou shall not kill" is fundamental commandment to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty God. 38 While the Catholic Church, to which the
vast majority of our people belong, acknowledges the power of public authorities to prescribe the death
penalty, it advisedly limits such prerogative only to "cases of extreme
gravity." 39 To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40 "punishment
must be carefully evaluated and decided upon, and ought not to go to the extreme of executing the
offender except in cases of absolute necessity: in other words, when it would not be possible otherwise to
defend society . . . (which is) very rare, if not practically 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 reasons of "absolute necessity" involving crimes
of "extreme gravity", which are very rare and practically non-existent.
In the face of these evident truisms, I ask: Has the Congress, in enacting RA 7659, amply
discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe
death against well-defined "heinous" crimes?
I respectfully submit it has not.
WHEREFORE, the premises considered, I respectfully vote to grant partially the Supplemental
Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by
deleting the words "DEATH", as provided for under RA 7659," and substitute therefore reclusion
perpetua.
I further vote to declare RA 7659 unconstitutional insofar as it prescribes the penalty of death for the
crimes mentioned in its text.
Footnotes

1 Stoll v. Gottlieb, 305 US 165, 172; 59 S. Ct. 134, 138; 83 L. ed. 104 [1938].
2 Philippine Courts and their Jurisdiction, p. 13, 1998 ed.
3 Citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 100 Phil. 230; American
Insurance Co. v. US Lines Co., 63 SCRA 325; Republic v. Reyes, 71 SCRA 426;
Luzon Stevedoring Corp. v. Reyes, 71 SCRA 655; Agricultural and Industrial
Marketing Inc. v. CA, 118 SCRA 49; Vasco v. CA, 81 SCRA 712; Mindanao Portland
Cement Corp. v. Laquihan, 120 SCRA 930.
4 Ibid., at pp. 12-14, citing Miranda v. Tiangco, 96 Phil. 526; Santos v. Acuna, 63
O.G. 358; Cabaya v. Hon. R. Mendoza, 113 SCRA 400; Bueno Industrial and
Development Corp. v. Encaje, 104 SCRA 388.

5 Ibid., pp. 14-15 citing Molina v. dela Riva, 8 Phil. 569; Behn Meyer & Co. v.
McMicking, 11 Phil. 276; Warmer Barnes & Co. v. Jaucian, 13 Phil. 4; Espiritu v.
Crossfield, 14 Phil. 588; Mata v. Lichauco, 36 Phil. 809; De la Costa v. Cleofas, 67
Phil. 686; Omar v. Jose, 77 Phil. 703; City of Butuan v. Ortiz, 113 Phil. 636; De los
Santos v. Rodriguez, 22 SCRA 551; City of Cebu v. Mendoza, 66 SCRA 174.
6 29 Phil. 267 (1915), p. 270.
7 Sec. 1, Article VIII of the 1987 Constitution.
8 Sec. 5(f), Rule 135.
9 Philippine Political Law, p. 225, 1993 ed.
10 94 Phil. 534 (1954), pp. 550-555.
11 R.A. No. 372.
12 94 Phil. 550, p. 551.
13 See In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22.
14 See pp. 3-4 of Urgent Motion for Reconsideration.
15 See Art. 79 of the Revised Penal Code.
16 Modern Constitutional Law, Vol. 1, p. 409, 1969 ed., citing Caritativo v. California,
357 US 549, 21 L ed. 2d 1531, 78 S. Ct. 1263 [1958].
17 December 30 and 31, 1998 were declared holidays. January 1, 1999 was an
official holiday. January 2 was a Saturday and January 3 was a Sunday.
18 Urgent Motion for Reconsideration of Public respondents, p. 8.
19 Darrow, Crime: Its Cause and Treatment, p. 166 (1922).
20 Eisler, A Justice For All, p. 268.
21 "Where personal liberty is involved, a democratic society employs a different
arithmetic and insists that it is less important to reach an unshakable decision than to
do justice." Pollack, Proposals to Curtail Habeas Corpus for State Prisoners:
Collateral Attack on the Great Writ. 66 Yale LJ 50, 65 (1956).
VITUG, J., separate opinion;
1 Candelana vs. Caizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate
Appellate Court, 178 SCRA 545, Lipana vs. Development Bank of Rizal, 154 SCRA
257; Lee vs. De Guzman, 187 SCRA 276, Bachrach Corporation vs. Court of
Appeals, G.R. No. 128349, 25 September 1998.

2 29 Phil 267.
3 At least for Mr. Echegaray.
4 G.R. No 124329, 14 December 1998.
PANGANIBAN, J., separate opinion;
* I have further explained my unflinching position on this matter in my recent
book Battles in the Supreme Court, particularly on page 58 to 84.
Separate opinion;
1 It is called "Supplemental" because there was a (main) Motion for Reconsideration
filed by the previous counsel of the accused, which this Court already denied.
2 The Anti Death Penalty Task Force of the Free Legal Assistance Group Pablito
V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa, Eduardo R.
Abaya and Ma. Victoria I. Diokno filed its Notice of Appearance dated August 22,
1996 only on August 23, 1996, after the Per 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. Muoz, 170 SCRA 107, February 9, 1989, the Court, prior to the
enactment and effectivity of RA 7659, ruled by a vote of 9-6 (J. Cruz, ponente, C.J.
Fernan, JJ., Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino and
Medialdea, concurring) that the death penalty was not abolished but only prohibited
from imposed. But see also the persuasive Dissenting Opinion of Mme. Justice
Ameurfina Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento, Cortes and
Regalado) who contended that the Constitution totally abolished the death penalty
and removed it form the statute books. People vs. Muoz reversed the earlier
"abolition" doctrine uniformly held in People vs. Gavarra, 155 SCRA 327, October 30,
1987, (per C.J. Yap); People vs. Masangkay, 155 SCRA 113, October 27, 1987, (per
J. Melencio-Herrera) and People vs. Atencio, 156 SCRA 242, December 10, 1987
(per C.J. Narvasa). It is time that these cases are revisited by this Court.
6 This quote is taken from I Record of the Constitutional Commission, p. 676 (July
17, 1986) as follows:

Fr. Bernas:
xxx xxx xxx
My recollection on this is that there was a division in the Committee not on whether
the death penalty should be abolished or not, but rather on whether the abolition
should be done by the Constitution in which case it cannot be restored by the
legislature or left to the legislature. The majority voted for the constitutional
abolition of the death penalty. And the reason is that capital punishment is inhuman
for the convict and his family who are traumatized by the waiting, even if it is never
carried out. There is no evidence that death penalty deterred deadly criminals,
hence, life should not be destroyed just in the hope that other lives might be saved.
Assuming mastery over the life of another man is just too presumptuous for any man.
The fact that the death penalty as an institution has been there from time immemorial
should not deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So basically, this is the summary of the
reason which were presented in support of the constitutional abolition of the death
penalty (emphasis supplied)
7 Dissenting Opinion in People vs. Muoz, supra, p. 129.
8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held that a statute
which allows an exception to a constitutional right (against warrantless arrests)
should be strictly construed.
9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus curiae in
People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996), vigorously
argues that RA 7659 has validly restored the death penalty which may now be
imposed provided that the prosecution proves, and the court is convinced, that (a)
the accused is guilty of a crime designated by RA 7659 as capital, (b) whose
commission is accompanied by aggravating circumstances as defined by Arts. 14
and 15 of the Revised Penal Code, (c) the accompanying aggravating circumstance
must be one which can be characterized by the court as making the crime "heinous",
and (d) that the execution of the offender is demanded by "compelling reasons"
related to the offense. In other words, according to him, it is the courts not
Congress that have responsibility of determining the heinousness of a crime and
the compelling reason for its imposition upon a particular offender, depending on the
facts of each case. I cannot however subscribe to this view. The Constitution clearly
identifies Congress as the sovereign entity which is given the onus of fulfilling these
two constitutional limitations.
10 People vs. Muoz, supra, p. 121.
11 Which became effective on December 31, 1993, per People vs. Burgos, 234
SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676, December 6,
1995; People vs. Albert, 251 SCRA 136, December 11, 1995.
12 Art. 114 Treason; Art. 123 Qualified Piracy; Art. 246 Parricide;
Art. 248 Murder; Art. 255 Infanticide; Art. 267 Kidnapping and Serious Illegal
Detention; Art. 294 Robbery with violence against or intimidation of persons; Art.
320 Destructive Arson; Art. 335 Rape.

13 Art. 221-A on Qualified Bribery.


14 Sec. 2, RA 7080 Plunder; Secs. 3, 4, 5, 7, 8 and 9 of Article II of
RA 6425 Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425
Carnapping.
15 A preamble is not an essential part of a statute. (Agpalo, Statutory Construction,
Second Edition 1990; Martin, Statutory Construction, Sixth Edition, 1984). The
function of the preamble is to supply reasons and explanation and not to confer
power or determine rights. Hence it cannot be given the effect of enlarging the scope
or effect of a statute. (C. Dallas Sands, Statutes and Statutory Construction, Fourth
Edition, Volume LA, 20.03).
16 Under Sec. 11, RA 7659, it appears that death is the mandatory penalty for rape,
regardless of the presence or absence of aggravating or mitigating circumstances,
"(w)hen by reason or on the occasion of the rape, a homicide is committed," or when
it is "committed with any of the attendant circumstances enumerated" in said section.
17 While in plunder and qualified bribery are "new" capital offenses, RA 7659
nonetheless fails to justify why they are considered heinous. In addition, the specific
compelling reasons for the prescribed penalty of death are note laid out by the
statute.
18 In the case of rape, RA 7659 provided certain attendant circumstances which the
prosecution must prove before courts can impose the extreme penalty. Just the same
however, the law did not explain why said circumstances would make the crimes
heinous. Neither did it set forth the complelling reasons therefor.
19 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 48, January 25, 1993, p. 122.
20 I Record of the Constitutional Commission, July 18, 1986, pp. 742-743:
MR. SUAREZ The Gentleman advisedly used the words 'heinous crimes', whatever
is the pronunciation. Will the Gentleman give examples of 'heinous crimes'? For
example, would the head of an organized syndicate in dope distribution or dope
smuggling fall within the qualification of a heinous offender such as to preclude the
application of the principle of abolition of death penalty?
MR. MONSOD Yes, Madam President. That is one of the possible crimes that would
qualify for a heinous crime. Another would be organized murder. In other words,
yesterday there were many arguments for and against, and they all had merit. But in
the contemporary society, we recognize the sacredness of human life and I think it
was Honorable Laurel who said this yesterday it is only God who gives and takes
life. However, the voice of the people is also the voice of God, and we cannot
presume to have the wisdom of the ages. Therefore, it is entirely possible in the
future that circumstances may arise which we should not preclude today. We know
that this is very difficult question. The fact that the arguments yesterday were quite
impassioned and meritorious merely tell us that this is far from a well-settled issue. At
least in my personal opinion, we would like the death penalty to be abolished.
However, in the future we should allow the National Assembly in its wisdom and as

representatives of the people, to still impose the death penalty for the common good,
in specific cases.
MR. SUAREZ. Thank you.
I would like to pursue some more the Gentleman's definition of 'heinous crimes'.
Would the brutal murder of a rape victim be considered as falling within that
classification?
MR. MONSOD. Madam President, yes, particularly, if it is a person in authority. He
would, therefore, add as an aggravating circumstance to the crime the abuse of this
position authority.
MR. SUAREZ. Thank you.
21 Some examples of this may be taken by Congress from Richmond vs. Lewis, 506
US 40, like "gratuitous violence" or "needless mutilation" of the victim.
22 Paragraph 3 & 4 of the preamble reads:
WHEREAS, due to the alarming upsurge of such crimes which has resulted
not only in the loss of human lives and wanton destruction of property but has
also affected the nation's efforts towards sustainable economic development
and prosperity while at the same time has undermined the people's faith in
the Government and the latter's ability to maintain peace and order in the
country.
WHEREAS, the Congress, in the interest of justice, public order and the rule of law,
and the need to rationalize and harmonize the penal sanctions for heinous crimes,
finds compelling reasons to impose the death penalty for said crimes;
23 Record of the House of Representatives, First Regular Session, 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 experts then social scientist or penologists or
what?
FR. BERNAS. Penologists.
MR. RAMA. Of course we are aware that there is also another school of thought
here, another set of experts, who would swear that the death penalty discourages
crimes or criminality. Of course. Commissioner Bernas knows that never in our
history has there been a higher incidence of crime. I say that criminality was at its
zenith during the last decade.
FR. BERNAS. Correct, in spite of the existence of the death penalty.
MR. RAMA. Yes, but not necessarily in spite of the existence of the death penalty. At
any rate, does the sponsor think that in removing the death penalty, it would not
affect, one way or another, the crime rate of the country?
FR. BERNAS. The position taken by the majority of those who voted in favor of this
provision is that means other than the death penalty should be used for the
prevention of crime.
28 Cf. Report to the United Nations Committee on Crime Prosecution and Control,
United Nations Social Affairs Division, Crime Prevention and Criminal Justice Branch,
Vienna, 1988, p. 110.
29 Former Chief Justice Enriquez M. Freehand, in his book, The Bill of Rights,
(Second Edition, 1972, p. 4.) states: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. . . ." In the
context of the role of a bill of right the vast powers of government are clearly to be
exercise within the limits set by the constitution, particularly the bill of rights. In
Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-24693, July
31, 1967), it was held that the exercise of police power, insofar as it may affect the
life, liberty or property of any person is subject to judicial inquiry. The guarantee in
Sec. 1 of Article III of the Constitution embraces life, liberty and property. In the words
of Justice Roberto Concepcion in People vs. Hernandez, (99 Phil 515, 551-2 [1956]),
". . . individual freedom is too basic, too transcendental and vital in a republican
state, like ours, to be denied upon mere general principle and abstract consideration
of public safety. Indeed, the preservation of liberty is such a major preoccupation of
our political system that, not satisfied with guaranteeing its enjoyment in the very first
paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and
(21) of said section (1) to the protection of several aspects of freedom. . . ." These
guarantees are preserved in the 1987 Constitution, according to Fr. Bernas.
30 See, for instance People vs. Sinatao, 249 SCRA 554, 571, October 25, 1995, and
People vs. Pidia, 249 SCRA 687, 702-703, November 10, 1995.
31 Art. III, Sec. 1.

32 Art. III, Sec. 11.


33 Art. II, Sec. 12 (2).
34 Art. II, Sec. 12.
35 Art. II, Secs. 15, 16 & 17.
36 For details, see Annex A of the Memorandum for the Accused-Appellant dated
September 26, 1996 filed by the Free Legal Assistance Group in People vs.
Malabago, G.R. No. 115686, December 2, 1996.
37 The FLAG-submitted Profile states that have been sentenced to death by trial
courts since the effectivity of RA 7659. The Philippine Star issue of December 9,
1996, page 17, however reports that, quoting Sen. Ernesto Herrera, the total number
of death row inmates has gone up to 267, as of November, 1996, of whom, more
than one half (139) are rape convicts. Some major dailies (Philippine Daily Inquirer,
Philippine Star, Manila Standard) in their February 3, 1997 issue up the death row
figure to 300, as of the end of January 1997, with 450 as the probable number at the
end of 1997.
38 The preamble of the Constitution is theistic. It declares the "sovereign Filipino
people's imploration of the "aid of Almighty God".
39 Cetechism of the Catholic Churh, p. 512, Word and Life Publications:
2266. Preserving the common good of society requires rendering the
aggressor unable to inflict harm. For this reason the traditional teaching of
the Church has acknowledged as well-founded the right and duty of
legitimate public authority to punish malefactors by means of penalties
commensurate with the gravity of the crime, not excluding, in cases of
extreme gravity, the death penalty. For analogous reasons those holding
authority have the right to repel by armed force aggressors against the
community in their charge.
40 Evangelium Vitae, items no. 55 and 56 states:
55. This should not cause surprise: to kill a human being, in whom the image
of God is present, is a particularly serious sin. Only God is the master of life!
Yet from the beginning, faced with the many and often tragic cases which
occur in the life of individuals and society, Christian reflection has sought a
fuller and deeper understanding of what God's commandment prohibits and
prescribes. There are, in fact situations in which values proposed by God's
Law seem to involve a genuine paradox. This happens for example in the
case of legitimate defence, in which the right to protect one's own life and the
duty not to harm someone else's life are difficult to reconcile in practice.
Certainly, the intrinsic value of life and the duty to love oneself no less than
others are the basis of a true right to self-defence. The demanding
commandment of love of neighbor, set forth in the Old Testament and
confirmed by Jesus, itself presupposes love of oneself as the basis of
comparison: "You shall love your neighbor as yourself" (Mk. 12:31).

Consequently, no one can renounce the right to self-defence out of lack of


love for life or for self. This can only be done in virtue of a heroic love which
deepens and transfigures the love of self into a radical self-offering,
according to the spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The sublime
example of this self-offering is the Lord Jesus himself.
Moreover, "legitimate defence can be not only a right but a grave duty for
someone responsible for another's life, the common good of the family or of
the State." Unfortunately it happens that the need to render the aggresor
incapable of causing harm sometimes involves taking his life. In this case,
the fatal outcome is attributable to the aggressor incapable whose action
brought it about, even though he may not be morally responsible because of
a lack of the use of reason.
56. This is context in which to place the problem of the death penalty. On this
matter there is a growing tendency, both in the Church and in civil society, to
demand that it be applied in a very limited way or even that it be abolished
completely. The problem must be viewed in the context of a system of penal
justice even more in line with dignity and thus, in the end, with God's plan for
man and society. The primary purpose of the punishment which society
inflicts is "to redress the disorder caused by the offence." Public authority
must redress the violation of personal and social rights by imposing on the
offender to regain the exercise of his or her freedom. In this way authority
also fulfills the purpose of defending public order and ensuring people's
safety, while at the same time offering the offender an incentive and help to
change his or her behavior and be rehabilitated.
It is clear that, for these purposes to be achieved, the nature and extent of
the punishment must be carefully evaluated and decided upon, and ought not
go to the extreme of executing the offender except in cases of absolute
necessity: in other words, when it would not be possible other wise to defend
society. Today however, as a result of steady improvements in the
organization of the penal system, such cases are very rare, if not partically
non-existent.
1wphi1.nt

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