The Philippine Experience

in ‘Abolishing’ the Death Penalty1

Commission on Human Rights of the Philippines

January 2007
This paper seeks to trace the history of the imposition of the
death penalty and revisit the events that transpired leading up
to the ‘prohibition of the imposition of death penalty’ in the
Philippines and relate the strategies that have been undertaken
by the Commission on Human Rights as a national human rights
institution in its campaign against the Death Penalty.

The Death Penalty was “abolished” under the 1987 Constitution

and became the first Asian country to abolish the death penalty
for all crimes.

The Philippines holds the distinction of the first country in

Asia to totally abolish the death penalty only to directly 2
reintroduce it later on.

Bernas in his ‘The Constitution of the Republic of the

Philippines, A Commentary’ relates the debates on the issue of
death penalty:

The constitutional abolition of the death

penalty, which immediately took effect upon
ratification of this Constitution, does not
prevent the legislation from re-imposing it
at some future time.

The 1987 Constitution reads in Article III, section 19(1) that

effective upon its ratification:

‘The death penalty shall not be imposed

unless for compelling reasons involving
heinous crimes, the Congress hereafter
provides for it. Any death penalty already
imposed shall be reduced to reclusion
perpetua’

The intention of the above provision as recorded in the annals

of the Constitutional Commission was that ‘…upon ratification of
this Constitution, death already imposed is automatically—
without need for any action of the president—commuted3.

1
Prepared by the Government Linkages Office of the Commission on Human Rights of the
Philippines. This newly created office undertakes cooperation as a mode of engagement with the
executive, legislative and judiciary branches of government in respect of the Commissions mandate
to monitor government compliance with human rights treaty obligations particularly of its treaty
reporting obligations, harmonization of domestic laws in accordance with the standards and
principles set by the Seven Core International Human Rights Instruments, monitoring Philippine
Jurisprudence that gives effect to the provisions of core human rights treaties, and advising
administrative or executive response to implement human rights treaties.
2
It is noted that the Human Rights Committee has issued views that indirectly introduces the
death penalty in a State where it has abolished the death penalty in domestic law. That is by
exposing a person who is subject to extradition, expulsion, repatriation to a country that
imposes death penalty for crimes that he/she is accused of or has committed.
3
Bernas, Joaquin G. (1987) The Constitution of the Republic of the Philippines: A Commentary.
Manila, Philippines: Rex Book Store

1
The State Policy, as embodied in the 1987 Constitution is
therefore, one of prohibition where the imposition of capital
punishment is an exception. It is abolitionist in perspective,
and embodies the core value of protecting the right to life and
upholding human dignity.

In 1993, a series of serious crimes, described as ‘heinous’,

ensued in the early part of the Fidel V. Ramos Administration.
By virtue of RA No. 7659 signed in December 1993, the re-
imposition of the death penalty was passed to address the rising
criminality. The Death Penalty Law lists a total of 46 crimes
punishable by death; 25 of these are death mandatory while 21
are death eligible. Republic Act No. 8177 mandates that a death
sentence shall be carried out through lethal injection. With the
amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and
Republic Act No. 9165 (Comprehensive Dangerous Drugs act of
2002), there were 52 capital offenses, 30 of which are death
mandatory and 22 are death eligible.

In 1999, President Joseph Estrada carried out the Capital

Punishment and put to death seven (7) death row convicts. ‘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% as a total of 82,538 (from 71,527
crimes in the previous year)..4 giving in to appeals of groups
against the death penalty including the Roman Catholic Church,
President Estrada issued a moratorium on execution in observance
of the ‘Jubilee year’.5 The practice of ‘not carrying out
executions was then initiated and carried over to the
administration of President Gloria Macapagal Arroyo.

On 5 December 2003, President Arroyo announced the lifting of

the de facto moratorium on executions. A rise in drug
trafficking and kidnappings that victimized mainly the Filipino
Chinese community was cited as one reason to ‘sow fear into the
hears of criminals’.6 As executions were poised to resume in
January 2004 plans were halted because of the reopening of the
capital case of Lara and Licayan. The Supreme Court vacated
the decision of the lower court and ordered the admission of
newly discovered evidence, including testimonial evidence of two
other co-accused in the same case, both of whom gave testimony
exonerating Lara and Licayan from culpability.7

Since then, the administration has been issuing reprieves on

scheduled executions without actually issuing a moratorium.

Role of the CHRP in the campaign against the Death

Penalty

The role of the Commission on Human Rights has been undertaken

with great consideration of the International Covenant on Civil
and political Rights and the 1987 Constitution.

4
Ibid.
5
Ibid.
6
Ibid.
7
Rueda-Acosta, Persida v., ‘Death Penalty not a deterrent to Criminality’, CHRP-EU Human Rights
Dialogue: Death Penalty and Restorative Justice , 30 November Waterfront Hotel, Cebu City

2
Response of the Commission on Human Rights has largely drawn on
its advisory, recommendatory power to advocate against the
imposition of Capital Punishment.

Pursuant to its constitutional mandate to ‘monitor government

compliance of its international treaty obligations on human
rights’ and its power ‘to recommend to Congress effective
measures to promote human rights…’8, the Commission on Human
Rights strongly opposed the re-imposition of the death penalty
through resolutions and advisories:

Before the Re-imposition of the Death Penalty

The Commission on Human Rights vehemently objected to efforts

re-imposing the death penalty through CHR Resolution A91-033
dated 8 August 19919. It cautioned against the restoration of the
death penalty and recommended reforms for a more effective
enforcement of penal laws. It expressed its opinion and
declared that:

It is not fully convinced that the death

penalty is the answer to rising criminality.
The proper response to criminality lies in
effective law enforcement, the quick and
impartial delivery of justice, and a
responsive penal system. Only when such
reforms are proven to be ineffective should
the legislature begin to consider other
alternatives to restore the death penalty.

The proper response to the failure of our

justice system is political will to
effectively apprehend, prosecute and
rehabilitate criminals. To mete out
criminals the very final, irrevocable and
inhuman verdict of death is tantamount to
punishing them for the failure of the
system10.

Through this resolution, the 1st Commission extended Four Hundred

Ten Thousand Pesos (PhP 410,000) as financial support to a non-
government organization, Free Legal Assistance Group in its
representation of death convicts11.

On the Impending Execution of the First Death Row Convict

In its resolution entitled ‘Re-examination of the Death Penalty’

the 2nd Commission underscored the obligation to comply with
international human rights instruments, particularly the
International Covenant on Civil and Political Rights and the
8
Article XIII, Sec 18.6 & 18.17, 1987 Constitution of the Republic of the Philippines
9
CHR Resolution A91 – 033 was issued in 1991 by the First Commission, composed of Chairperson
Sedfrey A. Ordonez, Commissioners Hesiquio R. Mallillin, Samuel M. Soriano, Narciso C. Monteiro
and Paulynn Paredes Sicam.
10
Ibid.
11
Separate Opinion of Commissioner Nasser Marohomsalic recounts the action of the previous
Commission (hereinafter the 1st Commission)

3
Convention Against Torture, Cruel, Inhuman, Degrading Treatment
or Punishment. The resolution cited studies of human rights
groups that the application of the death penalty is a violation
of the right to life and the right not to be subjected to
torture, degrading treatment or punishment. It gave support to
the argument that the death penalty does not serve as an
effective deterrent to violent crimes raised the issue of
discrimination against the poor:

Records show that most of the people under

the death sentence belong to the lower
classes of society. Usually financially
unable to pay for counsel, the court
appoints counsel de officio for them. More
often, poor persons may not receive fair
trails due to incompetent, inexperienced or
ineffective counsel. Thus, while the law is
not discriminatory, the practical effect of
the death penalty is discrimination against
the poor.12 . . . It took the case of Leo
Echegaray13 to exemplify the discrimination,
it noted that the sad plight of the
underprivileged in the Echegaray case where
the crucial issue of constitutionality was
woefully omitted in the trial court and in
the Supreme Court until the Free Legal
Assistance Group (FLAG), an NGO with
expertise on the matter conducted extensive
preparation, and research and presentation
to the defense of the accused.14

Minors in Death Row

Well entrenched in the Philippine’s Death Penalty Law is the

circumstance of minority considered as a mitigating circumstance
in the Revised Penal Code of the Philippines.

In 1999, ‘Minors in Death Row’ gained the attention of the

public. Child Rights Center of the CHRP [CHR-CRC] in its
collaborative undertakings with the Philippine Action for Youth
Offenders, a loose coalition of government and non-government
organizations banded together to raise awareness on the issue of
‘Minors in Death Row’. It first came to know of the situation
of Minors in Death Row in Muntinlupa [the national penitentiary
housing death row inmates] when member organization Philippine
Jesuit for Prison Services based in Muntinlupa interviewed death
row inmates. Two claimed that they were under 18 years of age
at the time of the commission of their offense. In response,
the Child Rights Center, together with officers of Department of
Social Welfare and Development visited the two death row inmates.

12
The CHR Resolution on the ‘Re-examination of the Death Penalty’ was issued on 6 March 1997 by
the Second Commission, composed Chairperson Aurora Navarette Recina, Commissioners Vicente P.
Sibulo, Jorge R. Coquia, Mercedes V. Contreras with a separate opinion of Commissioner Nasser
Marohomsalic.
13
Ibid. note 15
14
Ibid.

4
CHR-CRC’s intervention was to investigate the background of
these men in order to obtain evidence of their claim to
minority. The case study documented the Commission’s action:
The Child Rights Center has been successful
in acquiring the birth certificates of a
number of these youths in death row. Upon
review, the Supreme Court acquitted one
while in the other case, the Child Rights
Center was able to find his birth
certificate. True to his testimony, he was
one month shy of being eighteen. The
Supreme Court handed down the decision
reducing his penalty accordingly. “Jelly”
has since been moved from the confines of
death row but is still serving sentence in
the National Penitentiary. In one other
case, the young man was proven to have been
older than eighteen when he committed the
heinous crime.

While performing investigative work to establish minority, the

Commission through its Child Rights Center prepared its
independent comments to the Philippine Report on the
Implementation of the Convention on the Rights of the Child.
This was transmitted to the Council for the Welfare of Children
for their advisement and/or consideration.

On The right not to be subjected to cruel, inhuman and degrading

treatment or punishment:

The Center recommends the inclusion of

Minors in Death Row cases in this portion of
the report. Dutyholders from first contact
of these children failed to secure copies of
their birth certificates or establish their
minority at the time of the commission on
the offense. The Commission on Human
Rights-Child Rights Center was able to
secure the birth certificate of one of the
first two cases reported which paved the way
for the Supreme Court, on automatic review
of death sentences, to correct this by
considering the mitigating circumstance of
minority. The Supreme Court acquitted the
other minor. There are at least six more
youths in death row and the CHR-CRC has been
intervening in these cases by tracing the
birth certificates of these persons and
referring the same to appropriate agencies
for proper action.

At the onset of these cases, the Commission issued on 13

September 1999 its Advisory on the Death Penalty for Minors.
This is to block the legislative proposal that would cure the
occurrence of Minors in Death Row, the Second Commission stated
that the said plan to lower the age of majority from 18 to 16
years old with the intention of imposing the death penalty to

5
minors will violate at least two international instruments on
human rights, Article 6 (5) of the International Covenant on
Civil and Political Rights prohibiting the imposition of the
death penalty to persons under 18 years of age and the
Convention on the Rights of the Child, that capital punishment
nor life imprisonment shall be imposed for offenses committed by
persons below 18 years of age.

On the Expression of second thoughts by the Executive and the

issuance of a De Facto Moratorium on Executions

Human Rights Advisory CHR-A15-200015 entitled ‘On the Abolition

of the Death Penalty Law’ cited studies conducted on the death
penalty

Despite the enactment of the death penalty

law and the execution of seven convicts,
more heinous crimes have been committed.
From January to October 1999, the reported
cases of rape, which is considered as a
heinous [crime] under the statute, have
substantially increased.

The resolution cited with favor the expression of second

thoughts by then President Joseph Estrada on the imposition of
the death penalty. He has commuted to life imprisonment the
death sentence of prisoners in Muntinlupa [the national
penitentiary where death row is housed]. It further noted that
several bill proposals have been filed in Congress to abolish
the measure. The Commission [called] for the ratification of
the Second Optional Protocol to the International Convention on
Civil and Political Rights, aiming at the abolition of the death
penalty.

Lara Licayan Case

On January 20, 2004, 10 days before the scheduled execution of

Roberto Lara and Roderick Licayan, the CHRP led by present
Chairperson Purificacion C. Valera Quisumbing submitted a
position paper to the Supreme Court, presenting among others,
its "full support to the motion of the Public Attorney’s Office
(PAO) Chief, Persida Rueda-Acosta requesting the Honorable
Supreme Court to reopen the case of Roderick Licayan and Roberto
Lara based on testimonies of Pedro Mabansag and Rogelio de los
Reyes." The CHR contended, "what will unfold during the trial by
reason of their testimonies is something relevant to the
innocence of Licayan and Lara."16

As a result of the Public Attorney’s motion, the Supreme Court

ordered the temporary suspension of the execution of Roderick
Licayan and Roberto Lara on 30 January 2004, for a period of 30
calendar days from January 27.

15
Issued by the 2nd Commission on 19 December 2000.
16
Acosta Speech

6
Human Rights Advisory on the Abolition of the Death Penalty CHR-
A2005-00417

The 3rd Commission restated its stand against the death penalty.
Significant in this advisory was the declaration of the death
penalty as a deliberate killing by the State stressing that ‘it
is unconstitutional per se for being the utmost form of torture’.

Monitoring International Developments on the Death Penalty as it

relates to the Philippine Experience

The Philippines became a State Party to the International

Covenant on Civil and Political Rights State Party on 27 January
1987.

The series of communications challenging the Philippine

Government’s action on the Right to Life Article 6.1 of the
ICCPR, highlights the invaluable contribution of the Free Legal
Assistance Group (FLAG) a non – government organization in
enriching the Human Rights Committee jurisprudence on the
Philippines in its reimposition of the death penalty law. Below
are summaries of the Human Rights Committee’s views on the issue
at hand:

In Piandiong, Morallos and Bulan,18 the Philippines committed

grave breach of its obligations under the first optional
protocol.

While the Human Rights Committee declared that it could not make
a finding of a violation of any of the articles of the ICCPR
because of the Government went ahead and executed the authors
despite the request for interim measures, the Committee
concluded that the State committed grave breach of its
obligation under the Protocol by putting the alleged victims to
death before it could consider the communication:

Succeeding communications led to a more concrete view of the re-

imposition of the death penalty in the Philippines.

Views in Carpo19 on the consideration of the merits found a

violation of Article 6 Paragraph 1 in Paragraphs 8.2 – 8.3:

. . . the Committee observes at the outset,

in response to the State Party’s argument
that the Committee’s function is not to
assess the constitutionality of a State
Party’s law, that its task rather is to
determine the consistency with the covenant
alone of the particular claims brought
before it.

17
CHR–A2005-004 was issued on 22 March 2005 by the Third Commission headed by Chairperson
Purificacion C. Valera Quisumbing and Commissioners Eligio P. Mallari, Dominador N. Calamba II,
Wilhelm D. Soriano, and Quintin B. Cueto III.

18
Piandong et al v. The Philippines, Communication No. 869/1999, CCPR/70/D/869/1999 on 19 October
2000
19
Carpo et al v. Philippines, Communication No. 1077/2002, CCPR/C/77/D/1077/2002, 28 March 2003

7
 In the present case, the Committee observes
that the Supreme Court considered the case
to be governed by article 48 of the Revised
penal Code, according to which, if a single
act constitutes at once two crimes, the
maximum penalty for the more serious crime
must be applied. The crimes committed by a
single act being three murders and an
attempted murder, the maximum penalty for
murder – the death penalty was imposed
automatically by operation of the provisions
of article 48. The Committee refers to its
jurisprudence that mandatory imposition of
the death penalty constitutes arbitrary
deprivation of life, in violation of article
6, paragraph 1, of the Covenant...

In Ramil Rayos:20

The Committees’ views reiterated the Carpo

decision, that the task of the Committee is
to determine the consistency with the
Covenant of the particular claims brought
before it. It ruled that the RPC as
revised by RA 7659, which provides that
‘when by reason or on the occasion of rape,
a homicide is committed, the penalty shall
be death.’ Thus the death penalty was
imposed automatically by operation of
article 335 of the RPC as amended. The
Committee refers to its jurisprudence that
the automatic imposition of the death
penalty in the author’s case, by virtue of
article 335 of the RPC as amended violated
his rights under Article 6, Paragraph 1 of
the Covenant.

In Rolando21

The Human Rights Committee found a violation of Article 6. But

significant to note is the discussion of Individual Opinion by
Committee members, Mr. Martin Scheinin, Ms. Christine Chanet and
Mr. Rajsoomer Lallah (partly dissenting) on the discussion of
the obligation not to re-impose the death penalty once abolished:

. . . we are of the opinion that the time

has come to address the question of the
compatibility with article 6 of the
reintroduction of capital punishment in a
country that once abolished it.

x x x

20
Ramil Rayos v. The Philippines Communication No. 1167/2003, CCPR/C/81/D/1167/2003 7 September
2003
21
Pagdayawon Rolando v The Philippines, Communication No. 1110/2002, CCPR/82/D/1110/2002, 8
December 2004

8
 To any reader familiar with the issue of
capital punishment, it is clear that the
Committee in the quoted paragraph decided
not only its position in respect of
“indirect” reintroduction of capital
punishment, where an abolitionist country
sending someone to face the death penalty in
another country, but also what comes to
direct reintroduction by allowing in its own
law for the death penalty after first
abolishing it.

x x x

This constituted, in our view, a violation

of article 6 of the Covenant. This violation
is separate from and additional to the
violation of article 6 established by the
Committee on the basis of the mandatory
nature of the death sentence.

Engaging in the Death Penalty Debate and Offering solutions for

a Restorative Justice: CHRP’s Strategic Partnership with EU22

The European Union and the Commission on Human Rights of the

Philippines jointly organized a series of human Rights dialogues
on the death penalty and restorative justice in the metro cities
of Cebu, Davao and Manila on November 30, December 5, and 8
2005, respectively. The dialogues aimed to provide an open
forum for debate and encouraged active participation from
prominent speakers and around 350 participants from various
civil society organizations, human rights groups, academia, as
well as from different government institutions and
representatives of EU Member States.

The conception of these dialogues goes back to the agreements

reached at the 4th Philippines-European Commission Senior
Officials’ Meeting (SOM) in February 2005 in Brussels. At the
SOM, CHRP Chairperson Quisumbing has requested to intensify co-
operation on human rights between the two institutions. The EC
welcomed this step and both sides began to look into ways of
working together to address human rights issues of mutual
concern in the Philippines. The Dialogues on Death Penalty and
Restorative Justice represent the first concrete step towards a
stronger partnership between CHRP and the EC/EU in the field of
human rights.

The dialogue also highlighted the advantages of restorative the

justice approach and the need to provide better access to
justice for the poor and disadvantaged. It was emphasized that
Restorative Justice is not a new concept imported from the west
but it has been applied in the Philippines through indigenous
forms of conflict resolution and through current probation
policies especially for juvenile offenders.

22
Excerpts taken from the Executive Summary of the Final Report on CHRP-EU Human Rights
Dialogues: Death Penalty and Restorative Justice, 2005

9
The discussions identified that pro- and anti – death penalty
advocates seemed to share a common concern: the need for
justice. Often, when people call for the death penalty, they
are indirectly calling for effective justice. They perceive the
death penalty to be the only solution to a malfunctioning
criminal justice system. Crucial in the objective to improve
the justice system in the Philippines is the attention to
victim’s rights and needs as it has been widely neglected.

At the end of the series of dialogues, the EU and the CHR issued
a Joint Statement where they reiterated their common position
against the death penalty and encouraged an increased attention
to the approach of restorative justice, as a more humane and
holistic way of dealing with people in conflict with the law.

The dialogues came at an opportune time when the pressure was

mounting for the current Philippine Government to abolish the
death penalty.

On 19 April 2006, in a letter to the House of Representatives

and the Senate, President Gloria Macapagal Arroyo endorsed the
immediate enactment of House Bill No. 4826 entitled ‘An Act
Prohibiting the Imposition of the Death Penalty. On June 24,
R.A. 9346, ‘An Act prohibiting the imposition of Death Penalty
in the Philippines’ was signed by the President of the
Philippines.

Signing of the Optional Protocol Aiming at the Abolition of the

Death Penalty.

Last 21 September 2006, the Philippines signed the Second

Optional Protocol to the ICCPR. The Senate is poised to concur
with the signature of the Executive as a constitutional
requirement. A letter to the Senate has been sent by the
Commission to request the Office of the President to transmit
the instrument of ratification.

Today’s challenge for the Commission on Human Rights of the

Philippines 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 challenge is now to balance the issues that have
been brought forth by our experience in the re-imposition of the
death penalty. To close the death penalty divide by bringing
together the actors in restorative justice: the victim, the
offender and the community.

At present, the Commission has been coordinating with the

Department of Foreign Affairs and the Office of the President to
effect the transmittal of the Instrument of ratification to the
Philippine Senate for their concurrence.

10