Monday, May 16, 2016

My thoughts on Duterte’s desire to impose “death penalty by hanging”

Duterte affirms his campaign promise to restore the death penalty, this time, “by hanging.”

He erroneously believes that the cruel and barbaric punishments of the Dark Ages are the best means to solve criminality in the country.

Death Penalty Law (1993), Fidel Ramos, 
and Erap Estrada’s PACC.

During the term of office of Pres. Fidel Ramos, RA 7659, otherwise known as the “Death Penalty Law”, was approved (effective December 31, 1993), imposing the death penalty. 

Ramos, like Duterte, believed that the death penalty was the best solution to criminality.

No wonder in the recent May 9 presidential election, Ramos publicly supported Duterte.

Ramos’ vice president, Joseph “Erap” Estrada, believed his theory, too. 

Ramos appointed Estrada as the chair of the high-profile Presidential Anti-Crime Commission (PACC).

Its arrests landed in the front pages of the newspapers. 

It made Estrada so popular that in the succeeding presidential election in 1998, he easily made it to Malacanang by a landslide vote.

R.A. No. 9346 (2006), Prohibiting Death Penalty.

During the term of office of Gloria Arroyo, R.A. No. 9346 was approved (effective June 30, 20o6).

It was her gift to the Pope when she visited him that year in the Vatican.

Arroyo was an avid Catholic.

The pertinent provisions of Arroyo’s R.A. No. 9346 provide as follows:

(1) It prohibited the imposition of the penalty of death.

(2) It repealed R.A. No. 8177, otherwise known as the “Act Designating Death by Lethal Injection”.

(3) It repealed or amended accordingly R.A. No. 7659, otherwise known as the “Death Penalty Law” and all other laws, executive orders and decrees insofar as they impose the death penalty. (Sec. 1).

(4) In lieu of the death penalty, it imposed the penalty of “reclusion perpetua”, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code. (Sec. 2). 

(5) It declared that persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of the said Act, shall not be eligible for parole under Act No. 4103, otherwise known as the “Indeterminate Sentence Law, as amended”. (Sec. 3). 

R.A. 9346 is the current law on death penalty (i.e., death penalty is prohibited up to now). 

R.A. 8177, Death By Lethal Injection.

As stated earlier, R.A. No. 8177, “Act Designating Death by Lethal Injection”, imposed only one mode of death penalty, that is, “by lethal injection”. 

It prohibited death penalty “by electric chair” or any other modes (“by firing squad”, “by hanging”, and the like).

Death penalty “by lethal injection” is the humane mode of death penalty practiced in developed countries, such as the United States.

China applies death penalty “by firing squad”. 

Death penalty “by electric chair” was the official mode of death penalty before Ramos approved R.A. No. 7659, “Death Penalty Law”, in 1993.

Death by Firing Squad during Martial Law.

During Martial Law Pres. Ferdinand Marcos allowed death penalty “by firing squad”, without abolishing death penalty “by electric chair”.

Marcos applied death penalty “by firing squad” only once. That was in the early 1970s involving a big-time Chinese drug dealer.

It was a big event that was televised nationwide. It made many people happy. It instilled fear and obedience in their hearts. It served as an example of the toughness of Martial Law. But it did not stop criminality.

Visit to the Vatican.

Last week, Duterte announced he would visit the Vatican to apologize to the Pope Francis for publicly cursing him during the campaign for causing a huge metro-wide traffic during his memorable papal visit.

The Vatican has not officially invited Duterte for a state visit prior to the premature announcement of Duterte of his plan to visit it.

Duterte invited himself to the Vatican, in a manner of speaking. 

Premature announcement of a state visit without prior consultation with and consent from the head of state of the country to be visited is a major faux pas in diplomacy.

Sensing that his vehement pro-death stand might affect his proposed conversation with the Pope, he withdrew his plan to visit the Vatican.

International Law and Death Penalty.

What is the current international norm with respect to death penalty?

Death penalty is not the current international norm.

The current international norm is in favor of rehabilitation, reformation and reintegration.

Most countries reject the death penalty.

The United Nations (UN) and its agencies involved in human rights, refugees, international humanitarian law, internally displace peoples, war crimes, human development, and the like reject the death penalty as an official policy.

In the early 1970s the Second Protocol to the 1949 Geneva Convention (the basis of modern-day International Humanitarian Law) was adopted by the UN.

It prohibited death penalty worldwide.

Most countries adhere to the said Protocol, except USA, China, Singapore, and a few others, which still practise death penalty.

Duterte Must Persuade Congress, the People, and the Supreme Court.

If Duterte insists on the revival of death penalty (and “by hanging”, at that”) he needs to persuade Congress to repeal Arroyo’s R.A. 9346 (c. 2006).

He needs to persuade the Catholic Church, the Filipinos (80% of whom are Catholics), the Mass Media, and the Civil Society to adopt his theory that death penalty “by hanging” is (a) not cruel, unusual and barbaric and that it is (b) a scientifically guaranteed and proven instrument to eradicate criminality.

He needs to persuade the Supreme Court that death penalty “by hanging” does not violate the Bill of Rights (Article III, 1987 Constitution). 

Bill of Rights.

Section 19, Article III (Bill of Rights), of the 1987 Constitution provides that:

(1) “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted.” 

(2) “Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.” 

(3) “Any death penalty already imposed shall be reduced to reclusion perpetua.”

(4) “The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.”

Judicial Review by the Supreme Court.

If Duterte insists on his plan to impose death penalty “by hanging” via persuasion, intimidation , and/or corruption aimed at Congress (under threat of a “revolutionary government” as he openly brags), I expect many freedom-loving Filipino lawyers, academicians, and civil society leaders, and opinion makers to seek the intervention of the Supreme Court to annul a law that Congress would pass to satisfy Duterte’s inhumane hunger for blood and penchant for “leadership by barbarism”.

Article VIII (Judicial Department) of the 1987 Constitution provides for the “expanded power of judicial review.” 

Its relevant provisions are as follows:

(1) “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

(2) “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF EXCESS OF JURISDICTION ON THE PART OF ANY BRANCH OR INSTRUMENTALITY OF THE GOVERNMENT.”

(3) The Supreme Court shall have the following powers, inter alia:

(a) “Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, PROHIBITION, mandamus, quo warranto, and habeas corpus.”

(b) “All cases in which the CONSTITUTIONALITY OR VALIDITY of any treaty, international or executive agreement, LAW, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.”

(c) “All criminal cases in which the penalty imposed is RECLUSION PERPETUA OR HIGHER.” 

(d) “Promulgate rules concerning the PROTECTION AND ENFORCEMENT OF CONSTITUTIONAL RIGHTS, xxx.”

If Duterte fails to cause the adoption by Congress of a law imposing death penalty “by hanging” and if he fails to secure the acceptance by the people and the Supreme Court of such a law, such a scenario will signal the downfall of his barbaric leadership.

Pillars of the Criminal Justice System.

There is no scientific evidence showing that death penalty, by whatever modes, is a deterrent to criminality. 

UN researches and academic studies by prominent foreign universities have proven it.

The best deterrents to criminality are the following:

(1) Strict and honest-to-goodness law enforcement;

(2) Determined and corruption-free prosecution of crimes by the Department of Justice and its public prosecutors;

(3) Swift, fair, and impartial administration of justice untainted by graft and corruption;

(4) Humane program for the rehabilitation, reformation, re-education, and reintegration of former inmates via an effective and well-funded probation and parole system; and

(5) Open-minded, supportive and compassionate community that embraces the reintegration of former inmates. 

The five (5) pillars of the Criminal Justice System are as follows:

(1) Law Enforcement (Philippine National Police, National Bureau of Investigation, and other law enforcement agencies);

(2) Prosecution (National Prosecution Service, Public Attorneys’ Office, Integrated Bar of the Philippines, Voluntary Bar Associations);

(3) Courts;

(4) Rehabilitation (probation and parole system); and

(5) Community.

Barbarism is not needed to solve criminality.

The solution to eradication of criminality is the effective, efficient, zealous, fair, swift, honest and orderly functioning of the Criminal Justice System.

A barbaric president is not required. Nor are cruel methods needed.

What the country needs in dealing with criminality is for its leaders and its people to behave as civilized and rational human beings, moved by loving-kindness, compassion and wisdom in dealing with our brother/sister Filipinos who go astray in life because of POVERTY, IGNORANCE, AND INEQUALITY.

Closing exhortations.

I urge Duterte to reconsider his barbaric plan to impose death penalty by whatever methods, i.e., electric chair, firing squad, lethal injection, hanging.

I urge Duterte to follow the current international norm against death penalty as pronounced by the United Nations and its relevant agencies.

I urge Duterte to listen to the moral teachings of his Church and his Pope.

I urge Duterte to control his temperaments in order not to expose our people to the barbarism, cruelty and inhumanity of the Dark Ages.

Prayer for the Father of the Nation.

I pray for Duterte’s inner peace, calmness of mind, purity of heart, wisdom, self-control, humility, meditative equanimity, and spiritual happiness.

Only then can he function as a genuine Father of the Nation.