Source: The Manila Times (20/21 January 2018)
http://www.manilatimes.net/reinstating-death-penalty-violation-international-law/375392/
http://www.manilatimes.net/reinstating-death-penalty-violation-international-law-2/375510/
AS a consequence of President Duterte’s war on drugs, there has been in the Philippines a move to reinstate death as capital punishment. On March 7, 2017, the House of Representatives approved the reimposition of the death penalty for drug-related crimes, among others, by a vote of 217 yeses and 54 no’s. The bill is pending in the Senate. As might be expected from the chamber that approves the ratification of international treaties, certain Senators have raised objections to the bill on the ground that it is violative of international law.
As noted by the late chairman of the Philippine Commission on Human Rights, Purificacion Valera Quisumbing, in her briefing paper submitted to the European Parliament in Brussels in January 2007 , the Philippines abolished the death penalty under its 1987 Constitution and became the first Asian country to abolish the death penalty for all crimes. It also became the first Asian country to abolish it only to reintroduce it later on.
The latter distinction owes to the fact that “the constitutional abolition of the death penalty, which immediately took effect upon the ratification of this Constitution, does not prevent the legislature from reimposing it at some future time (Bernas, The Constitution of the Republic of the Philippines: A Commentary). The Constitution in Article III, Section 1 9(1) reads that effective upon its ratification, “The death penalty shall not be imposed unless for compelling reasons, including heinous crimes the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua (life imprisonment).”
A series of serious crimes widely described as “heinous” occurred in 1993 during the administration of President Fidel V. Ramos. To arrest the rising criminality, the Death Penalty Law (Republic Act 7659) was signed in December 1993. It listed a total of 46 crimes punishable by death, 25 of which are death-mandatory and 21 are death-eligible. Republic Act 8177 mandated the death sentence be carried out by lethal injection. With the amendment of the Anti-Rape Law (RA 8533) and Comprehensive Dangerous Drugs Act of 2002 (RA9165), capital offenses were raised to 52; of these, 30 of are death-mandatory and 22 are death-eligible.
In 1999, the administration of President Joseph Estrada put to death seven death row convicts. It was observed that “1999 was a bumper year for executions which were intended to abate criminality. Instead, using the same year as baseline, criminality increased by 15.3 per cent, the total in the previous year of 71,527 crimes rising to 82,538 in1999.” Giving in to appeals from groups, including the Roman Catholic Church, President Estrada issued a moratorium on executions in observance of the Vatican’s “Jubilee Year.” The practice of carrying out executions was re-initiated and carried over to the administration of President Gloria Macapagal Arroyo.
After a rise in drug trafficking and kidnappings that mainly victimized the Chinese-Filipino community, President Arroyo announced on December 5, 2003, the lifting of the de facto moratorium on executions “to sow fear into the hearts of criminals.” The resumption of executions was, however, halted with the reopening of the Lara and Licayan capital case. The Supreme Court vacated the decision of the lower court and ordered the admission of newly discovered evidence, including the testimonial evidence of two other co-accused in the same case, both of whom gave testimony exonerating Lara and Licayan from culpability. Since then successive administrations have been issuing reprieves on scheduled executions without actually issuing a moratorium.
The Commission on Human Rights vehemently objected to the reimposition of the death penalty. It cautioned against it and recommended reforms for a more effective enforcement of penal laws. It should also be mentioned that the European Union and the Roman Catholic Church, among others, waged an intensifying campaign against the death penalty.
On April 19, 2006 in a letter to the House of Representatives and the Senate, President Arroyo endorsed the immediate enactment of House Bill No. 4826 entitled “An Act Prohibiting the Imposition of the Death Penalty.” It was signed into law as Republic Act 9346 on June 24, 2006.
At this point, the Philippines might be said to be the first Asian country to abolish the death penalty for all crimes only to reimpose it on certain heinous crimes, and then only to prohibit it totally once again.
To those who have followed the twists and turns of the history of the death penalty in the Philippines, much of the arguments for and against the current move to reimpose capital punishment are not new. Oriental Mindoro Rep. Reynaldo Umali, in sponsoring the bill reimposing the death penalty, cited four “compelling” reasons: 1) The death penalty is a fitting response to increasing criminality and killings in the county; 2)The death penalty is a measure to restore respect for the laws of the land; 3) Death is a path to achieving justice; and 4) Reimposition of the death penalty is geared towards a genuine reform in the Philippines criminal justice system.
OPPOSITION to the move to reimpose the death penalty has been most eloquently expressed by Archbishop Socrates B. Villegas, president of the Catholic Bishops Conference of the Philippines, in his pastoral statement on March 19, 2017:
“On the day the death penalty was repealed by the Philippine Congress on June 24, 2006, the lights were turned on in the Colosseum in Rome. History tells us how many people, among them countless Christian martyrs. were publicly executed in that infamous arena. Perhaps to erase the darkness of inhumanity that the Colosseum has been associated with, the citizens of Rome have since made it a point to have it illuminated, each time another country decides to repeal its capital punishment law. Each illumination has been made to symbolize another advancement in human civilization. Are we to reverse that advancement by restoring the death penalty again in the Philippines?
Even with the best of intentions, capital punishment has never been proven effective as a deterrent to crime. Obviously, it is easier to eliminate criminals than to get rid of the root causes of criminality in society. Capital punishment and a flawed legal system are always a lethal mix. And since in any human society there is never a guarantee of a flawless legal system, there is always the great likelihood that those without capital will get the punishment more quickly because it is they who cannot afford a good lawyer and a guarantee of due process. As a law, the death penalty directly contradicts the principle of inalienability of the basic human right to life, which is enshrined in most Constitutions of countries that signed the Universal Declaration of Human Rights.”
To the arguments against the reimposition of the death penalty, an international law dimension has been added with the ratification by the Philippines on November 20, 2007 of the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).
The Human Rights Commission deserves credit for this development. The late Commissioner Quisumbling in her abovementioned briefing paper said: ”Today’s challenge to the Commission on Human Rights and the Right to Life advocates is to campaign for the ratification of the Second Optional Protocol and institutionalize efforts towards the approach of restorative justice.”
The ICCPR is one of the international Bill of Rights agreements, the others being the International Covenant on Economic, Social and Cultural Rights and the Universal Declaration of Human Rights. The ICCPR commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights, and rights to due process and fair trial. The ICCPR was 12 years in the making, drafted in 1954, adopted by the United Nations General Assembly on December 19, 1965, and entered into force on March 23, 1976. The Philippines was only one of six original signatories of the covenant. (The others were Costa Rica, Cyprus, Honduras, Israel, and Jamaica.) However, it took a long time for the Philippines to ratify the covenant, doing so only on January 23, 1987. O the Asean countries, Vietnam was ahead of the Philippines in ratifying(1982), but the Philippines was ahead of Cambodia (1992), Thailand (1997), Indonesia (2006) and Laos (2009). Malaysia, Myanmar, and Singapore are neither signatories nor parties.
The ICCPR has two optional protocols, The First Optional Protocol establishes an international complaints mechanism allowing individuals to complain to the UN Human Rights Committee about violations of the covenant. As of September 2013, the First Optional Protocol has 115 states parties, including the Philippines.
The Second Optional Protocol, adopted on December 15, 1989 and which took effect on July 11, 1991, abolishes the death penalty, although countries were permitted to make a reservation allowing for the use of the death penalty for most serious crimes of a military nature committed during wartime. As of December 2017, the Second Optional Protocol has 85 parties and two states which have signed but not ratified. The Philippines signed on September 20, 2006 and ratified on November 20, 2007. It did not make any declarations or reservations to the Second Optional Protocol. So far, the Philippines is the only Asean state party to the Protocol.
About the Second Optional Protocol, the question has been asked: “Is the abolition of the death penalty in a state party definitive and irrevocable?” Experts on the subject say, “the Second Optional Protocol is significant at the national level since it virtually precludes reinstatement of the death penalty. Indeed, any State Party wishing to reintroduce the death penalty would have first to withdraw from the Protocol. The absence in the Protocol of a procedural clause for withdrawal means that once a State has ratified the Second Optional Protocol, the death penalty can never be reintroduced without violating international law.”
Today there are two countries both state parties to the Second Optional Protocol that have announced their intentions to reintroduce the death penalty: Turkey (ratified March 2006) and the Philippines. Turkish President Recep Tayyip Erdogan said on October 29, 2016 that his government would ask Parliament to consider reintroducing the death penalty as a punishment for the plotters behind the July coup bid. The Philippines’ House of Representatives has voted to reimpose the death penalty for drug crimes. Should the moves of these countries prosper in the light of experts’ views that “once a State Party has ratified the Second Optional Protocol, the death penalty can never be introduced without violating international law?”
Historically, the death penalty has been used in almost every country of the world. Today it has been either abolished or discontinued in practice by a large majority of nations. Fifty-five countries have retained the death penalty in law or practice, while 103 have abolished it for all crimes and 37 have abolished it de facto. Those seeking to reimpose the death penalty appear to be out of step with the advancement of the world in human rights and moving contrary to international law.
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