Echegaray v Secretary of Justice

7/24/2019 Echegaray v Secretary of Justice

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EN BANC

[G.R. No. 132601. January 19, 1999.]

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

Atty. Theodore O. Te for petitioner.

The Solicitor General for respondents.

SYNOPSIS

This is the Urgent Motion for Reconsideration and the Supplement thereto of theResolution of the Supreme Court dated January 4, 1999 temporarily restraining theexecution of the death convict Leo Echegaray by lethal injection. It is the mainsubmission of public respondents that the Decision of the case having become finaand executory, its execution enters the exclusive ambit of authority of theexecutive authority. caHASI

The Court ruled that the power to control the execution of its decision is anessential aspect of jurisdiction. It cannot be the subject of substantial subtraction foour Constitution vests the entirety of judicial power in one Supreme Court and insuch lower courts as may be established by law. To be sure, the most important part

of a litigation, whether civil or criminal, is the process of execution of decisionswhere supervening events may change the circumstance of the parties and compecourts to intervene and adjust the rights of the litigants to prevent unfairness. It isbecause of these unforeseen, supervening contingencies that courts have beenconceded the inherent and necessary power of control of its processes and orders tomake them conformable to law and justice. For this purpose, Section 6 of Rule 135provides that "when by law jurisdiction is conferred on a court or judicial officer, alauxiliary writs, processes and other means necessary to carry it into effect may beemployed by such court or officer and if the procedure to be followed in the exerciseof such jurisdiction is not specifically pointed out by law or by these rules, anysuitable process or mode of proceedings may be adopted which appears conformableto the spirit of said law or rules." It bears repeating that what the Court restrainedtemporarily is the execution of its own Decision to give it reasonable time to checkits fairness in light of supervening events in Congress as alleged by petitioner. TheCourt, contrary to popular misimpression, did not restrain the effectivity of a lawenacted by Congress. CHIEDS

Moreover, the temporary restraining order of this Court has produced its desiredresult, i.e., the crystallization of the issue whether Congress is disposed to reviewcapital punishment. The public respondents, thru the Solicitor General, cite posterior



events that negate beyond doubt the possibility that Congress will repeal or amendthe death penalty law. In light of these developments, the Court's TRO should nowbe lifted as it has served its legal and humanitarian purpose.

The instant motion is GRANTED. IaAHCE

SYLLABUS

1.REMEDIAL LAW; ACTIONS; RULE ON FINALITY OF JUDGMENT; CANNOT DIVESTCOURT OF ITS JURISDICTION. — The rule on finality of judgment cannot divest thisCourt of its jurisdiction to execute and enforce the same judgment . Retired JusticeCamilo Quiason synthesized the well established jurisprudence on this issue asfollows: . . . "the finality of a judgment does not mean that the Court has lost all itspowers 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 hasbecome final the court retains its jurisdiction to execute and enforce it. There is adifference between the jurisdiction of the court to execute its judgment and its

jurisdiction to amend, modify or alter the same. The former continues even aftethe judgment has become final for the purpose of enforcement of judgment; thelatter terminates when the judgment becomes final . . . . For after the judgment hasbecome final facts and circumstances may transpire which can render the executionunjust or impossible.

2.ID.; SUPREME COURT; FINALITY OF DECISION IN CRIMINAL CASES; PARTICULAROF EXECUTION ITSELF STILL UNDER CONTROL OF JUDICIAL AUTHORITY. — Incriminal cases, after the sentence has been pronounced and the period for reopeningthe same has elapsed, the court cannot change or alter its judgment, as its

jurisdiction has terminated . . . When in cases of appeal or review the cause hasbeen returned thereto for execution, in the event that the judgment has beenaffirmed, it performs a ministerial duty in issuing the proper order. But it does nofollow from this cessation of functions on the part of the court with reference to theending of the cause that the judicial authority terminates by having then passedcompletely to the Executive . The particulars of the execution itself, which arecertainly not always included in the judgment and writ of execution, in any eventare absolutely under the control of the judicial authority, while the executive has nopower over the person of the convict except to provide for carrying out of thepenalty and to pardon. (Director of Prisons v. Judge of First Instance , 26 Phil. 267

[1915])3ID.; CRIMINAL PROCEDURE; EXECUTION OF SENTENCE; GROUNDS FORPOSTPONEMENT. — Notwithstanding the order of execution and the executorynature thereof on the date set or at the proper time, the date therefor can bepostponed, even in sentences of death . Under the common law this postponementcan 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 thisprinciple of the common law to render impossible that assertion in absolute termsthat 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. IDTcHa

4.ID.; ACTIONS; JURISDICTION; POWER TO CONTROL EXECUTION OF DECISIONAN ESSENTIAL ASPECT THEREOF. — The power to control the execution of itsdecision is an essential aspect of jurisdiction. It cannot be the subject of substantiasubtraction for our Constitution vests the entirety of judicial power in one SupremeCourt and in such lower courts as may be established by law. To be sure, the mostimportant part of a litigation, whether civil or criminal, is the process of execution of

decisions where supervening events may change the circumstance of the partiesand compel courts to intervene and adjust the rights of the litigants to preventunfairness. It is because of these unforeseen, supervening contingencies that courtshave been conceded the inherent and necessary power of control of its processesand orders to make them conformable to law and justice.

5.ID.; SUPREME COURT; JURISDICTION OF THIS COURT DOES NOT DEPEND ONCONVENIENCE OF LITIGANTS. — The same motion to compel Judge Ponferrada toreveal 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 publicrespondents, did not oppose petitioner's motion on the ground that this Court hasno more jurisdiction over the process of execution of Echegaray . This Court grantedthe relief prayed for by the Secretary of Justice and by the counsel of the petitionerin its Resolution of December 15, 1998. There was not a whimper of protest fromthe public respondents and they are now estopped from contending that this Courthas lost its jurisdiction to grant said relief. The jurisdiction of this Court does notdepend on the convenience of litigants.

6.ID.; ID.; POWER TO SUSPEND EXECUTION OF CONVICTS DOES NOT VIOLATE CO-

EQUAL AND COORDINATE POWERS OF BRANCHES OF GOVERNMENT. — The textand tone of this provision will not yield to the interpretation suggested by the publicrespondents. The provision is simply the source of power of the President to grantreprieves, commutations, and pardons and remit fines and forfeitures afterconviction by final judgment. It also provides the authority for the President to grantamnesty with the concurrence of a majority of all the members of the Congress. Theprovision, however, cannot be interpreted as denying the power of courts to controthe enforcement of their decisions after their finality. In truth, an accused who hasbeen convicted by final judgment still possesses collateral rights and these rightscan be claimed in the appropriate courts . For instance, a death convict who becomes

insane after his final conviction cannot be executed while in a state of insanity. Asobserved by Antieau, "today, it is generally assumed that due process of law wilprevent the government from executing the death sentence upon a person who isinsane at the time of execution." The suspension of such a death sentence isundisputably an exercise of judicial power. It is not a usurpation of the presidentialpower of reprieve though its effect is the same — the temporary suspension of theexecution of the death convict. In the same vein, it cannot be denied that Congresscan at any time amend R. A. No. 7659 by reducing the penalty of death to lifeimprisonment. The effect of such an amendment is like that of commutation ofsentence. 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 thePresident to commute final sentences of conviction. The powers of the Executivethe Legislative and the Judiciary to save the life of a death convict do not excludeeach other for the simple reason that there is no higher right than the right to lifeIndeed, in various States in the United States, laws have even been enactedexpressly granting courts the power to suspend execution of convicts and theirconstitutionality has been upheld over arguments that they infringe upon thepower of the President to grant reprieves. For the public respondents therefore tocontend that only the Executive can protect the right to life of an accused after hisfinal conviction is to violate the principle of co-equal and coordinate powers of thethree branches of our government.

VITUG, J., separate opinion :

1.CONSTITUTIONAL LAW; R.A. NO. 7659, UNCONSTITUTIONAL. — Let me state atthe 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 theConstitution . I and some of my brethren on the Court, who hold similarly, haveconsistently expressed this stand in the affirmance by the Court of death sentencesimposed by Regional Trial Courts. Until the exacting standards of the Constitutionare clearly met as so hereinabove expressed, I will have to disagree, mostrespectfully, with my colleagues in the majority who continue to hold the presentlystructured Republic Act. No. 7659 to be in accord with the Constitution, an issuethat is fundamental, constant and inextricably linked to the imposition each time ofthe death penalty and, like the instant petition, to the legal incidents pertinentthereto. HAaDTI

2.REMEDIAL LAW; SUPREME COURT; WITH JURISDICTION TO ISSUE "TEMPORARYRESTRAINING ORDER" ON EXECUTION OF DEATH PENALTY. — In its resolution of 04 January 1999, the Court resolved to issue in the above-numbered petition atemporary restraining order ("TRO") because, among other things, of what had beenstated to be indications that Congress would re-examine the death penalty law. TheCourt, 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 . Thedoctrine has almost invariably been that after a decision becomes final andexecutory, 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 rulenotwithstanding, the Court retains control over the case until the full satisfaction ofthe final judgment conformably with established legal processes. Hence, the Courthas taken cognizance of the petition assailing before it the use of lethal injection bythe State to carry out the death sentence. In fine, the authority of the Court to seeto the proper execution of its final judgment, the power of the President to grantpardon, commutation or reprieve, and the prerogative of Congress to repeal ormodify the law that could benefit the convicted accused are not essentiallypreclusive of one another nor constitutionally incompatible and may each beexercised within their respective spheres and confines. Thus, the stay of execution



issued by the Court would not prevent either the President from exercising hispardoning power or Congress from enacting a measure that may be advantageousto the adjudged offender.

3.ID.; ACTIONS; JUDGMENT; IMMUTABILITY OF FINAL AND EXECUTORY JUDGMENTS; EXCEPTIONS. — In any event, jurisprudence teaches that the rule oimmutability of final and executory judgments admits of settled exceptionsConcededly, the Court may, for instance, suspend the execution of a final judgment

when it becomes imperative in the higher interest of justice or when superveningevents warrant it . Certainly, this extraordinary relief cannot be denied any manwhatever might be his station, whose right to life is the issue at stake.

PANGANIBAN, J., separate opinion :

1.CONSTITUTIONAL LAW; R.A. NO. 7659 (DEATH PENALTY LAW),UNCONSTITUTIONAL. — R.A. 7659 (the Death Penalty Law) is unconstitutionainsofar as some parts thereof prescribing the capital penalty fail to comply with therequirements of "heinousness" and "compelling reasons" prescribed by the

Constitution of the Philippines.2.ID.; R.A. NO. 8177 (LETHAL INJECTION LAW), UNCONSTITUTIONAL. — R.A. 8177(the Lethal Injection Law) is likewise unconstitutional since it merely prescribes themanner in which R.A. 7659 (the Death Penalty Law) is to be implemented. DTAaCE

R E S O L U T I O N

PUNO, Jp

:

For resolution are public respondents' Urgent Motion for Reconsideration of the Resolution of this Court dated January 4, 1999 temporarily restraining theexecution of petitioner and Supplemental Motion to Urgent Motion forReconsideration. It is the submission of public respondents that: cdasia

"(1)The Decision in this case having become final and executory, itsexecution enters the exclusive ambit of authority of the executiveauthority. The issuance of the TRO may be construed as trenching onthat sphere of executive authority;

(2)The issuance of the temporary restraining order . . . creates dangerousprecedent as there will never be an end to litigation because there isalways a possibility that Congress may repeal a law.

(3)Congress had earlier deliberated extensively on the death penalty bill. Tobe certain, whatever question may now be raised on the Death PenaltyLaw before the present Congress within the 6-month period given bythis 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 inissuing the TRO has transcended its power of judicial review.

(5)At this moment, certain circumstances/supervening events transpired tothe effect that the repeal or modification of the law imposing deathpenalty 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 bearshis signature and that of Senator Pimentel."

In their Supplemental Motion to Urgent Motion for Reconsideration, publicrespondents attached a copy of House Resolution No. 629 introduced byCongressman Golez entitled "Resolution expressing the sense of the House of

Representative to reject any move to review Republic Act No. 7659 whichprovided for the re-imposition of death penalty, notifying the Senate, the Judiciary and the Executive Department of the position of the House of Representatives on this matter, and urging the President to exhaust all meansunder the law to immediately implement the death penalty law." The Resolutionwas concurred in by one hundred thirteen (113) congressmen.

In their Consolidated Comment, petitioner contends: (1) the stay order . . .is within the scope of judicial power and duty and does not trench on executivepowers nor on congressional prerogatives; (2) the exercise by this Court of itspower to stay execution was reasonable; (3) the Court did not lose jurisdiction to

address incidental matters involved or arising from the petition; (4) publicrespondents are estopped from challenging the Court's jurisdiction; and (5) thereis no certainty that the law on capital punishment will not be repealed ormodified until Congress convenes and considers all the various resolutions andbills filed before it.

Prefatorily, the Court likes to emphasize that the instant motions concernmatters that are not incidents in G.R. No. 117472, where the death penalty wasimposed on petitioner on automatic review of his conviction by this Court. Theinstant motions were filed in this case, G.R. No. 132601, where the

constitutionality of R.A. No. 8177 (Lethal Injection Law) and its implementingrules and regulations was assailed by petitioner. For this reason, the Court in itsResolution 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 hercounsel dated January 5, 1999. Clearly, she has no legal standing to intervene inthe case at bar, let alone the fact that the interest of the State is properlyrepresented 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 publicrespondents that this Court lost its jurisdiction over the case at bar and hence canno longer restrain the execution of the petitioner. Obviously, public respondentsare invoking the rule that final judgments can no longer be altered in accord withthe principle that "it is just as important that there should be a place to end asthere should be a place to begin litigation." 1 To start with, the Court is notchanging even a comma of its final Decision. It is appropriate to examine withprecision 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 thiscase, viz: LLjur

"ENTRY OF JUDGMENT

This is to certify that on October 12, 1998 a decision rendered in theabove-entitled case was filed in this Office, the dispositive part of whichreads as follows:

'WHEREFORE, the petition is DENIED insofar as petitioner seeks todeclare the assailed statute (Republic Act No. 8177) as

unconstitutional; but GRANTED insofar as Sections 17 and 19 of theRules and Regulations to Implement Republic Act No. 8177 areconcerned, which are hereby declared INVALID because (a) Section17 contravenes Article 83 of the Revised Penal Code, as amended bySection 25 of Republic Act No. 7659; and (b) Section 19 fails toprovide for review and approval of the Lethal Injection Manual by theSecretary of Justice, and unjustifiably makes the manual confidential,hence unavailable to interested parties including the accused/convictand counsel. Respondents are hereby enjoined from enforcing andimplementing 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 inaccordance with this Decision.

SO ORDERED.'

and that the same has, on November 6, 1998 become final and executoryand is hereby recorded in the Book of Entries of Judgment.

Manila, Philippines.

Clerk of Court

By: (SGD) TERESITA G. DIMAISIP

Acting Chief

Judicial Records 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 aCompliance where he submitted the Amended Rules and Regulationsimplementing R.A. No. 8177 in compliance with our Decision. On October 28,



1998, Secretary Cuevas submitted a Manifestation informing the Court that hehas caused the publication of the said Amended Rules and Regulations asrequired by the Administrative Code. It is crystalline that the Decision of thisCourt that became final and unalterable mandated: (1) that R.A. No. 8177is not unconstitutional; (2) that sections 17 and 19 of the Rules and Regulationsto Implement R.A. No. 8177 are invalid, and (3) R.A. No. 8177 cannot beenforced and implemented until sections 17 and 19 of the Rules and Regulationsto Implement R.A. No. 8177 are amended. It is also daylight clear that thisDecision was not altered a whit by this Court. Contrary to the submission of the Solicitor General, the rule on finality of judgment cannot divest thisCourt of its jurisdiction to execute and enforce the same judgment.Retired Justice Camilo Quiason synthesized the well established jurisprudence onthis 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 thecourt loses is its jurisdiction to amend, modify or alter the same. Even afterthe judgment has become final the court retains its jurisdiction to executeand enforce it. 3 There 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 becomesfinal. 4 . . . For after the judgment has become final facts andcircumstances may transpire which can render the execution unjust or

impossible. 5

In truth, the argument of the Solicitor General has long been rejected bythis Court. As aptly pointed out by the petitioner, as early as 1915, this Court hasunequivocably 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, afterthe sentence has been pronounced and the period for reopening the same

has elapsed, the court cannot change or alter its judgment, as its jurisdictionhas terminated . . . When in cases of appeal or review the cause has beenreturned thereto for execution, in the event that the judgment has beenaffirmed, it performs a ministerial duty in issuing the proper order. But itdoes not follow from this cessation of functions on the part of thecourt with reference to the ending of the cause that the judicialauthority terminates by having then passed completely to theExecutive. The particulars of the execution itself, which are certainly notalways included in the judgment and writ of execution, in any event areabsolutely under the control of the judicial authority, while the executive hasno power over the person of the convict except to provide for carrying out



of the penalty and to pardon. cdasia

Getting down to the solution of the question in the case at bar, whichis that of execution of a capital sentence, it must be accepted as ahypothesis that postponement of the date can be requested.There can be no dispute on this point. It is a well-known principlethat notwithstanding the order of execution and the executorynature thereof on the date set or at the proper time, the date

therefor can be postponed, even in sentences of death. Under thecommon law this postponement can be ordered in three ways: (1) Bycommand of the King; (2) by discretion (arbitrio ) of the court; and (3) bymandate of the law. It is sufficient to state this principle of the common lawto render impossible that assertion in absolute terms that after the convicthas once been placed in jail the trial court can not reopen the case toinvestigate the facts that show the need for postponement. If one of theways is by direction of the court, it is acknowledged that evenafter the date of the execution has been fixed, andnotwithstanding the general rule that after the (court) hasperformed its ministerial duty of ordering the execution . . . andits part is ended, if however a circumstance arises that ought todelay the execution, and there is an imperative duty to investigatethe emergency and to order a postponement. Then the questionarises as to whom the application for postponing the execution ought to beaddressed while the circumstances is under investigation and as 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 ourConstitution 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 mostimportant part of a litigation, whether civil or criminal, is the process of execution of decisions where supervening events may change thecircumstance of the parties and compel courts to intervene and adjustthe rights of the litigants to prevent unfairness. It is because of theseunforeseen, supervening contingencies that courts have been concededthe inherent and necessary power of control of its processes andorders 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 acourt 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 theprocedure to be followed in the exercise of such jurisdiction is notspecifically pointed out by law or by these rules, any suitable processor mode of proceeding may be adopted which appears conformable tothe spirit of said law or rules." It bears repeating that what the Courtrestrained temporarily is the execution of its own Decision to give it reasonabletime to check its fairness in light of supervening events in Congress as alleged bypetitioner. The Court, contrary to popular misimpression, did not restrain theeffectivity of a law enacted by Congress.

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 theimplant 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 andprocedure which, among others, spelled out the rules on execution of

judgments. These rules are all predicated on the assumption that courtshave the inherent, necessary and incidental power to control andsupervise the process of execution of their decisions. Rule 39 governsexecution, satisfaction and effects of judgments in civil cases. Rule 120 governs

judgments in criminal cases. It should be stressed that the power topromulgate rules of pleading, practice and procedure was granted byour Constitutions to this Court to enhance its independence, for in thewords of Justice Isagani Cruz "without independence and integrity, courts willlose that popular trust so essential to the maintenance of their vigor aschampions of justice." 9 Hence, our Constitutions continuously vested this powerto this Court for it enhances its independence. Under the 1935 Constitution,the power of this Court to promulgate rules concerning pleading, practice andprocedure was granted but it appeared to be co-existent with legislativepower for it was subject to the power of Congress to repeal, alter orsupplement. Thus, its Section 13, Article VIII provides:

"Sec. 13.The Supreme Court shall have the power to promulgate rulesconcerning pleading, practice and procedure in all courts, and the admissionto the practice of law. Said rules shall be uniform for all courts of the samegrade and shall not diminish, increase, or modify substantive rights. Theexisting laws on pleading, practice and procedure are hereby repealed asstatutes, and are declared Rules of Court, subject to the power of the

Supreme Court to alter and modify the same. The Congress shall havethe power to repeal, alter or supplement the rules concerningpleading, practice and procedure, and the admission to thepractice of law in the Philippines."

The said power of Congress, however, is not as absolute as it may appear on itssurface. In In re Cunanan 10 Congress in the exercise of its power to amend rulesof the Supreme Court regarding admission to the practice of law, enacted the BarFlunkers 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 asunconstitutional. In his ponencia, Mr. Justice Diokno held that ". . . the disputedlaw is not a legislation; it is a judgment — a judgment promulgated by this Courtduring the aforecited years affecting the bar candidates concerned; and althoughthis Court certainly can revoke these judgments even now, for justifiablereasons, it is no less certain that only this Court, and not the legislative norexecutive department, that may do so. Any attempt on the part of thesedepartments would be a clear usurpation of its function, as is the case with thelaw 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



exclusivelyto this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimumconditions for the license." By its ruling, this Court qualified the absolutisttone of the power of Congress to "repeal, alter or supplement the rulesconcerning pleading, practice and procedure, and the admission to the practice of law in the Philippines. cdasia

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 BatasangPambansa . . . ." 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 allcourts, the admission to the practice of law, and the integrationof the Bar, which, however, may be repealed, altered, orsupplemented by the Batasang Pambansa. Such rules shallprovide a simplified and inexpensive procedure for the speedydisposition of cases, shall be uniform for all courts of the samegrade, and shall not diminish, increase, or modify substantiverights."

Well worth noting is that the 1973 Constitution further strengthened theindependence of the judiciary by giving to it the additional power to promulgaterules governing the integration of the Bar. 13

T h e 1987 Constitution molded an even s tronger and moreindependent judiciary. Among others, it enhanced the rule making powerof this Court. Its Section 5(5), Article VIII provides:

xxx xxx xxx

"Section 5.The Supreme Court shall have the following powers:

xxx xxx xxx

(5)Promulgate rules concerning the protection andenforcement of constitutional rights, pleading, practiceand 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 procedurefor the speedy disposition of cases, shall be uniform for allcourts of the same grade, and shall not diminish, increase, ormodify substantive rights. Rules of procedure of special



courts and quasi-judicial bodies shall remain effectiveunless disapproved by the Supreme Court."

The rule making power of this Court was expanded. This Court for the firsttime was given the power to promulgate rules concerning the protection andenforcement of constitutional rights. The Court was also granted for the firsttime 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 concerningpleading, 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 tostrengthen the independence of the judiciary, it is inutile to urge, as publicrespondents 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 sincetime immemorial. LLphil

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 itsdecision in the case at bar. As aforestated, our Decision became final andexecutory on November 6, 1998. The records reveal that after November 6,1998, or on December 8, 1998, no less than the Secretary of Justicerecognized the jurisdiction of this Court by filing a Manifestation and UrgentMotion 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 contentsthereof, particularly the execution date fixed by such trial court to the publicwhen requested." The relevant portions of the Manifestation and Urgent Motionfiled by the Secretary of Justice beseeching this Court "to provide theappropriate relief" state:

xxx xxx xxx

5.Instead of filing a comment on Judge Ponferrada's Manifestationhowever, herein respondent is submitting the instant Manifestation andMotion (a) to stress, inter alia , that the non-disclosure of the date of execution deprives herein respondent of vital information necessary for theexercise 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 theappropriate relief .

6.The non-disclosure of the date of execution deprives hereinrespondent of vital information necessary for the exercise of his power of supervision and control over the Bureau of Corrections pursuant to Section39, Chapter 8, Book IV of the Administrative Code of 1987, in relation to TitleIII, Book IV of such Administrative Code, insofar as the enforcement of Republic Act No. 8177 and the Amended Rules and Regulations toImplement 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 informationabout the precise day of execution limits the exercise by the President of executive clemency powers pursuant to Section 19, Article VII (ExecutiveDepartment) of the 1987 Philippine Constitution and Article 81 of the RevisedPenal Code, as amended, which provides that the death sentence shall be

carried out 'without prejudice to the exercise by the President of hisexecutive clemency powers at all times." (Underscoring supplied) Forinstance, the President cannot grant reprieve, i .e ., postpone the executionof a sentence to a day certain (People v . Vera , 65 Phil. 56, 110 [1937]) in theabsence of a precise date to reckon with. The exercise of such clemencypower, at this time, might even work to the prejudice of the convict anddefeat the purpose of the Constitution and the applicable statute as whenthe date of execution set by the President would be earlier than thatdesignated 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 Principlesand State Policies) of the 1987 Philippine Constitution which read:

SEC. 7. The right of the people to information on matters of publicconcern shall be recognized. Access to official records, and todocuments and papers pertaining to official acts, transactions, ordecisions, as well as to government research data used as basis forpolicy development, shall be afforded the citizen, subject to suchlimitations as may be provided by law.

SEC. 28.Subject to reasonable conditions prescribed by law, the Stateadopts and implements a policy of full public disclosure of all itstransactions involving public interest.

9.The 'right to information' provision is self-executing. It supplies 'therules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations, 167 [1972]) by guaranteeing theright and mandating the duty to afford access to sources of information.Hence, the fundamental right therein recognized may be asserted by thepeople 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 theLegislature are reasonable conditions and limitations upon the access to beafforded which must, of necessity, be consistent with the declared Statepolicy of full public disclosure of all transactions involving public interest(Constitution, Art. II, Sec. 28). However, it cannot be overemphasized thatwhatever limitation may be prescribed by the Legislature, the right and theduty under Art. III, Sec. 7 have become operative and enforceable by virtueof 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 toinformation. The Solicitor General, as counsel for public respondents, didnot oppose petitioner's motion on the ground that this Court has nomore jurisdiction over the process of execution of Echegaray . This Courtgranted the relief prayed for by the Secretary of Justice and by the counsel of thepetitioner in its Resolution of December 15, 1998. There was not a whimper of protest from the public respondents and they are now estopped fromcontending that this Court has lost its jurisdiction to grant said relief. The

jurisdiction of this Court does not depend on the convenience of litigants. cdtai

II

Second. We likewise reject the public respondents' contention that the"decision in this case having become final and executory, its execution entersthe exclusive ambit of authority of the executive department . . .. Bygranting the TRO, the Honorable Court has in effect granted reprievewhich 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 thisConstitution, the President may grant reprieves, commutations, andpardons, and remit fines and forfeitures after conviction by final judgment.He shall also have the power to grant amnesty with the concurrence of amajority of all the members of the Congress."

The text and tone of this provision will not yield to the interpretation suggestedby the public respondents. The provision is simply the source of power of thePresident to grant reprieves, commutations, and pardons and remit fines andforfeitures after conviction by final judgment. It also provides the authority forthe President to grant amnesty with the concurrence of a majority of all themembers of the Congress. The provision, however, cannot be interpreted asdenying the power of courts to control the enforcement of their decisions aftertheir finality. In truth, an accused who has been convicted by final

judgment still possesses collateral rights and these rights can beclaimed in the appropriate courts. For instance, a death convict who becomesinsane 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 personwho is insane at the time of execution." 16 The suspension of such a deathsentence is undisputably an exercise of judicial power. It is not a usurpation of the presidential power of reprieve though its effect is the same — the temporarysuspension of the execution of the death convict. In the same vein, it cannot bedenied that Congress can at any time amend R.A. No. 7659 by reducing thepenalty of death to life imprisonment. The effect of such an amendment is likethat of commutation of sentence. But by no stretch of the imagination can theexercise by Congress of its plenary power to amend laws be considered as aviolation of the power of the President to commute final sentences of conviction.



The powers of the Executive, the Legislative and the Judiciary to savethe life of a death convict do not exclude each other for the simplereason that there is no higher right than the right to life. Indeed, invarious States in the United States, laws have even been enacted expresslygranting courts the power to suspend execution of convicts and theirconstitutionality has been upheld over arguments that they infringe upon thepower of the President to grant reprieves. For the public respondents therefore tocontend that only the Executive can protect the right to life of an accused afterhis 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 grievouslydistorted 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 executionhas 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'sresolution asking that clemency be granted to the petitioner and that capitalpunishment be reviewed has been concurred by thirteen (13) other senators;(b.2) Senate President Marcelo Fernan and Senator Miriam S. Defensor havepublicly declared they would seek a review of the death penalty law; (b.3)Senator Raul Roco has also sought the repeal of capital punishment, and (b.4)Congressman Salacrib Baterina, Jr., and thirty five (35) other congressmen aredemanding review of the same law.

When the Very Urgent Motion was filed, the Court was already in itstraditional recess and would only resume session on January 18, 1999. Eventhen, Chief Justice Hilario Davide, Jr. called the Court to a Special Session on

January 4, 1999 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 dueto be executed at 3 p.m. Thus, the Court had the difficult problem of resolvingwhether petitioner's allegations about the moves in Congress to repeal or amendthe 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 thatpetitioner's allegations were made in a pleading under oath and were widelypublicized in the print and broadcast media. It was also of judicial notice that the11th Congress is a new Congress and has no less than one hundred thirty(130) new members whose views on capital punishment are stillunexpressed. The present Congress is therefore different from the Congressthat 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 allegationslacked clear factual bases. There was hardly a time to verify petitioner'sallegations 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'smajority did not rush to judgment but took an extremely cautious stance bytemporarily restraining the execution of petitioner. The suspension wastemporary — "until June 15, 1999, coeval with the constitutional duration of the present regular session of Congress, unless it sooner becomes certainthat no repeal or modification of the law is going to be made ." Theextreme caution taken by the Court was compelled, among others, by the fearthat any error of the Court in not stopping the execution of thepetitioner will preclude any further relief for all rights stop at thegraveyard. As life was at stake, the Court refused to constitutionalize haste andthe hysteria of some partisans. The Court's majority felt it needed the certaintythat the legislature will not change the circumstance of petitioner as alleged byhis counsel. It was believed that law and equitable considerations demand no lessbefore allowing the State to take the life of one of its citizens.

The temporary restraining order of this Court has produced itsdesired result, i.e., the crystallization of the issue whether Congress isdisposed to review capital punishment. The public respondents, thru the Solicitor

General, cite posterior events that negate beyond doubt the possibility thatCongress will repeal or amend the death penalty law. He names thesesupervening events as follows: cda

xxx xxx xxx

"a.The public pronouncement of President Estrada that he will veto any lawrepealing the death penalty involving heinous crimes.

b.The resolution of Congressman Golez, et al., that they are against therepeal of the law;

c.The fact that Senator Roco's resolution to repeal the law only bears hissignature and that of Senator Pimentel." 18

In their Supplemental Motion to Urgent Motion for Reconsideration, theSolicitor General cited House Resolution No. 629 introduced by CongressmanGolez entitled "Resolution expressing the sense of the House of Representativesto reject any move to review R.A. No. 7659 which provided for the reimpositionof death penalty, notifying the Senate, the Judiciary and the ExecutiveDepartment of the position of the House of Representatives on this matter and

urging the President to exhaust all means under the law to immediatelyimplement the death penalty law." The Golez resolution was signed by 113congressmen as of January 11, 1999. In a marathon session yesterday thatextended up to 3 o'clock in the morning, the House of Representatives withminor amendments formally adopted the Golez resolution by an overwhelmingvote. House Resolution No. 25 expressed the sentiment that the House ". . . doesnot desire at this time to review Republic Act 7659." In addition, the Presidenthas stated that he will not request Congress to ratify the Second Protocol in viewof the prevalence of heinous crimes in the country. In light of thesedevelopments, 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 ". . . thequestion of capital punishment has been the subject of endless discussion andwill 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 debateon the legal and moral predicates of capital punishment has been regrettablyblurred 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 ademocracy. But when the debate deteriorates to discord due to theoveruse of words that wound, when anger threatens to turn themajority rule to tyranny, it is the especial duty of this Court to assurethat 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 — andparticularly the Bill of Rights — to declare certain values transcendent,beyond the reach of temporary political majorities." 20 Man has yet to invent abetter 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 blownaway by the winds of rage. The flame of the rule of law cannot beignited 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 andthey can pass their litmus test only when they can be fair to him who ismomentarily the most hated by society. 21

IN VIEW WHEREOF, the Court grants the public respondents' UrgentMotion for Reconsideration and Supplemental Motion to Urgent Motion forReconsideration and lifts the Temporary Restraining Order issued in itsResolution 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 datefor execution of the convict/petitioner in accordance with applicable provisions of law and the Rules of Court, without further delay. cdasia

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 .:

Let me state at the outset that I have humbly maintained that RepublicAct 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 theaffirmance by the Court of death sentences imposed by Regional Trial Courts.

In its resolution of 04 January 1999, the Court resolved to issue in theabove-numbered petition a temporary restraining order ("TRO") because, amongother 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 comityto a co-equal branch of the government, i.e., to reasonably allow it that

opportunity if truly minded, that motivated the Court to grant, afterdeliberation, 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 theimposition of the death penalty. cdtai

The doctrine has almost invariably been that after a decision becomes finaland executory, nothing else is further done except to see to its compliance sincefor the Court to adopt otherwise would be to put no end to litigations. The rulenotwithstanding, the Court retains control over the case until the full satisfactionof the final judgment conformably with established legal processes. Hence, theCourt has taken cognizance of the petition assailing before it the use of lethalinjection 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, forinstance, suspend the execution of a final judgment when it becomesimperative in the higher interest of justice or when supervening eventswarrant 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. Thepronouncement 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, afterthe sentence has been pronounced and the period for reopening the samehas elapsed, the court can not change or alter its judgment, as its jurisdiction has terminated, functus est officio suo , according to the classicalphrase. When in cases of appeal or review the cause has been returnedthereto for execution, in the event that the judgment has been affirmed, itperforms a ministerial duty in issuing the proper order. But it does not

follow from this cessation of functions on the part of the courtwith reference to the ending of the cause that the judicialauthority terminates by having then passed completely to theexecutive. The particulars of the execution itself, which arecertainly 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 theperson of the convict except to provide for carrying out thepenalty and to pardon.



"Getting down to the solution of the question in the case at bar, whichis that of execution of a capital sentence, it must be accepted as ahypothesis that postponement of the date can be requested. There can beno dispute on this point. It is a well-known principle that,notwithstanding the order of execution and the executory naturethereof on the date set or at the proper time, the date thereforcan be postponed, even in sentences of death. Under the commonlaw 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 thelaw. It is sufficient to state this principle of the common law to renderimpossible the assertion in absolute terms that after the convict has oncebeen placed in jail the trial court can not reopen the case to investigate thefacts that show the need for postponement. If one of the ways is bydirection of the court, it is acknowledged that even after the date of the execution has been fixed, and notwithstanding the generalrule that after the Court of First Instance has performed itsministerial duty of ordering the execution, functus est officio suo ,and its part is ended, if however a circumstance arises that oughtto delay the execution, there is an imperative duty to investigatethe 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 benefitthe convicted accused are not essentially preclusive of one another norconstitutionally incompatible and may each be exercised within their respectivespheres and confines. Thus, the stay of execution issued by the Court would notprevent either the President from exercising his pardoning power or Congressfrom enacting a measure that may be advantageous to the adjudged offender.

The TRO of this Court has provided that it shall be lifted evenbefore its expiry date of 15 June 1999, "coeval with the duration of thepresent regular session of Congress," if it "sooner becomes certain thatno repeal or modification of the law is going to be made ." The "UrgentMotion for Reconsideration" filed by the Office of the Solicitor General states thatas of the moment, "certain circumstances/supervening events (have) transpiredto the effect that the repeal or modification of the law imposing death penaltyhas become nil . . ." If, indeed, it would be futile to yet expect any chance for atimely 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 evennow to lift the TRO.

I am hopeful, nevertheless, that Congress will in time find its way clear toundertaking a most thorough and dispassionate re-examination of the law notso much for its questioned wisdom as for the need to have a second look at theconditions sine qua non prescribed by the Constitution in the imposition of thedeath penalty. In People vs. Masalihit , 4 in urging, with all due respect, Congressto 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, theCongress of the Philippines, subject to the conditions that theConstitution itself has set forth; viz : (1) That there must becompelling reasons to justify the imposition of the death penalty;and (2) That the capital offense must involve a heinous crime. Itappears that the fundamental law did not contemplate a simple'reimposition' of the death penalty to offenses theretofore alreadyprovided in the Revised Penal Code or, let alone, just because of

it. The term 'compelling reasons' would indicate to me that theremust first be a marked change in the milieu from that which hasprevailed at the time of adoption of the 1987 Constitution, on theone hand, to that which exists at the enactment of the statuteprescribing the death penalty, upon the other hand, that wouldmake it distinctively inexorable to allow the re-imposition of thedeath penalty. Most importantly, the circumstances that wouldcharacterize the 'heinous nature' of the crime and make it soexceptionally offensive as to warrant the death penalty must bespelled out with great clarity in the law, albeit without necessarilyprecluding the Court from exercising its power of judicial reviewgiven 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 andexcruciating death or, in the crime of rape, when the offended party iscallously humiliated or even brutally killed by the accused. The indiscriminateimposition 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 greatprejudice of victims and society."

Today, I reiterate the above view and until the exacting standards of theConstitution are clearly met as so hereinabove expressed, I will have to disagree,most respectfully, with my colleagues in the majority who continue to hold thepresently structured Republic Act No. 7659 to be in accord with the Constitution,an issue that is fundamental, constant and inextricably linked to the impositioneach time of the death penalty and, like the instant petition, to the legalincidents pertinent thereto.

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

the ruling of the majority.

PANGANIBAN, J .:

I agree with the Court's Resolution that, without doubt, this Court has jurisdiction to issue the disputed Temporary Restraining Order (TRO) on January4, 1999. I will not repeat its well-reasoned disquisition. I write only to explain myvote in the context of the larger issue of the death penalty.

Since the solicitor general has demonstrated that Congress will not repealor 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 tothe imposition of the death penalty transcend the TRO and permeate its juridicalessence. cdasia

I maintain my view that RA 7659 (the Death Penalty Law) isunconstitutional insofar as some parts thereof prescribing the capital penalty failto comply with the requirements of "heinousness" and "compelling reasons"

prescribed by the Constitution of the Philippines. *

This I have repeatedly statedin my Dissenting Opinions in various death cases decided by the Court, as well asduring the Court's deliberation on this matter on January 4, 1999. For easyreference, I hereby attach a copy of my Dissent promulgated on February 7,1997.

Consequently, I cannot now vote to lift the TRO, because to do so wouldmean the upholding and enforcement of a law (or the relevant portions thereof)which, I submit with all due respect, is unconstitutional and therefore legallynonexistent. I also reiterate that, in my humble opinion, RA 8177 (the LethalInjection Law) is likewise unconstitutional since it merely prescribes the manner

in which RA 7659 (the Death Penalty Law) is to be 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 areconstitutional and that the death penalty should, by majority vote, beimplemented by means of lethal injection.

FOR THE ABOVE REASONS, I vote to deny the solicitor general's Motion forReconsideration.

EN BANC

[G.R. No. 117472. February 7, 1997.]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO,accused-appellant.

Supplemental Motion for Reconsideration

Death Penalty Law Unconstitutional

In his Supplemental Motion for Reconsideration 1 dated August 22, 1996filed by his newly-retained counsel, 2 the accused raises for the first time a verycrucial ground for his defense: that Republic Act No. 7659, the law reimposingthe death penalty, is unconstitutional. In the Brief and (original) Motion for

Reconsideration filed by his previous counsel,3

this transcendental issue was notbrought up. Hence, it was not passed upon by this Court in its Decision affirmingthe trial court's sentence of death. 4

The Constitution Abolished Death Penalty

Section 19, Article III of the 1987 Constitution provides:

"Sec. 19.(1) Excessive fines shall not be imposed, nor cruel, degradingor inhuman punishment inflicted. Neither shall death penalty be imposed,unless for compelling reasons involving heinous crimes, the Congresshereafter provides for it. Any death penalty already imposed shall be



reduced to reclusion perpetua ." (Underscoring supplied)

The second and third sentences of the above provision are new and had notbeen written in the 1935, 1973 or even in the 1986 "Freedom Constitution."

They proscribe the imposition 5 of the death penalty "unless for compellingreasons involving heinous crimes, Congress provides for it," and reduced "any

death penalty already imposed" to reclusion perpetua . The provision has both aprospective aspect (it bars the future imposition of the penalty) and a retroactiveone (it reduces imposed capital sentences to the lesser penalty of imprisonment).

This two-fold aspect is significant. It stresses that the Constitution did notmerely suspend the imposition of the death penalty, but in fact completelyabolished it from the statute books. The automatic commutation or reduction toreclusion perpetua of any death penalty extant as of the effectivity of theConstitution clearly recognizes that, while the conviction of an accused for acapital crime remains, death as a penalty ceased to exist in our penal laws andthus may no longer be carried out. This is the clear intent of the framers of our

Constitution. As Comm. Bernas exclaimed, 6 "(t)he majority voted for theconstitutional abolition of the death penalty."

Citing this and other similar pronouncements of the distinguished Concomdelegate, Mme. Justice Ameurfina Melencio-Herrera emphasized, 7 "It is thusclear that when Fr. Bernas sponsored the provision regarding the non-impositionof the death penalty, what he had in mind was the total abolition and removalfrom the statute books of the death penalty. This became the intent of theframers of the Constitution when they approved the provision and made it a partof the Bill of Rights." With such abolition as a premise, restoration thereof

becomes an exception to a constitutional mandate. Being an exception and thusin derogation of the Constitution, it must then be strictly construed against theState and liberally in favor of the people. 8 In this light, RA 7659 enjoys nopresumption of constitutionality.

The Constitution Strictly LimitsCongressional Prerogative to Prescribe Death

To me, it is very clear that the Constitution (1) effectively removed thedeath penalty from the then existing statutes but (2) authorized Congress torestore it at some future time to enable or empower courts to re-impose it on

condition that it (Congress) 9 finds "compelling reasons, involving heinouscrimes." 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 strictlylimited:

(1)by "compelling reasons" that may arise after the Constitution becameeffective; 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 crimesare "heinous" before it could exercise its law-making prerogative to restore thedeath 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 11to "provide for it" (the death penalty) (1) by amending certain provisions of theRevised Penal Code; 12 (2) by incorporating a new article therein; 13 and (3) byamending certain special laws. 14

But RA 7659 did not change the nature or the elements of the crimesstated in the Penal Code and in the special laws. It merely made the penaltymore severe. Neither did its provisions (other than the preamble, which was castin general terms) discuss or justify the reasons for the more severe sanction,either collectively for all the offenses or individually for each of them. LLjur

Generally, it merely reinstated the concept of and the method by which thedeath penalty had been imposed until February 2, 1987, when the Constitutiontook effect as follows: (1) a person is convicted of a capital offense; and (2) thecommission of which was accompanied by aggravating circumstances notoutweighed by mitigating circumstances.

The basic question then is: In enacting RA 7659, did Congress exceed thelimited authority granted it by the Constitution? More legally put: In reviving thedeath penalty, did Congress act with grave abuse of discretion or in excess of thevery limited power or jurisdiction conferred on it by Art. III, Sec. 19? The answer,I respectfully submit, is YES.

Heinous Crimes To repeat, while the Constitution limited the power of Congress to

prescribe the death penalty ONLY to "heinous" crimes, it did not define orcharacterize the meaning of "heinous". Neither did Congress. As already stated,RA 7659 itself merely selected some existing crimes for which it prescribeddeath as an applicable penalty. It did not give a standard or a characterization bywhich courts may be able to appreciate the heinousness of a crime. I concedethat Congress was only too well aware of its constitutionally limited power. Indeference 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 areheinous for being grievous, odious and hateful offenses and which, byreason of their inherent or manifest wickedness, viciousness, atrocity andperversity are repugnant and outrageous to the common standards andnorms of decency and morality in a just, civilized and ordered society."

In my humble view, however, the foregoing clause is clearly an insufficientdefinition or characterization of what a heinous crime is. It simply andgratuitously declared certain crimes to be "heinous" without adequately



justifying its bases therefor. It supplies no useful, workable, clear andunambiguous standard by which the presence of heinousness can be determined.Calling the crimes "grievous, odious and hateful" is not a substitute for anobjective juridical definition. Neither is the description "inherent or manifestwickedness, viciousness, atrocity and perversity." Describing blood as blue doesnot detract from its being crimson in fact; and renaming gumamela as rose willnot arm it with thorns.

Besides, a preamble is really not an integral part of a law. It is merely anintroduction to show its intent or purposes. It cannot be the origin of rights andobligations. Where the meaning of a statute is clear and unambiguous, thepreamble can neither expand nor restrict its operation, much less prevail over itstext. 15 In this case, it cannot be the authoritative source to show compliancewith the Constitution.

As already alluded to, RA 7659 merely amended certain laws to prescribedeath as the maximum imposable penalty once the court appreciates thepresence or absence of aggravating circumstances. 16 There's nothing really newthat Congress did which it could not have otherwise done had such provision not

been included in our fundamental law. cdt

In other words, it just reinstated capital punishment for crimes which werealready punishable with death prior to the effectivity of the 1987 Constitution.With the possible exception of plunder and qualified bribery, 17 no new crimeswere introduced by RA 7659. The offenses punished by death under said lawwere already so punishable by the Revised Penal Code 18 and by special laws. Inshort, Sec. 19, Article III of the Constitution did not have any impact upon thelegislative action. It was effectively ignored by Congress in enacting the capitalpunishment law.

During the debate on Senate Bill No. 891 which later became RA 7659,Sen. Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said: 19

"So we did not go that far from the Revised Penal Code, Mr. President,and from existing special laws which, before abolition of the death penalty,had already death as the maximum penalty."

By merely reimposing capital punishment on the very same crimes whichwere already penalized with death prior to the charter's effectivity, Congress Isubmit has not fulfilled its specific and positive constitutional duty. If theConstitutional Commission intended merely to allow Congress to prescribe death

for these very same crimes, it would not have written Sec. 19 of Article III intothe 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 restorationpossible only under and subject to stringent conditions is evident not only fromthe language of the Constitution but also from the charter debates on thismatter.

The critical phrase "unless for compelling reasons involving heinous crimes"was an amendment introduced by Comm. Christian Monsod. In explaining whatpossible crimes could qualify as heinous, he and Comm. Jose Suarez agreed on



"organized murder" or "brutal murder of a rape victim". 20 Note that thehonorable commissioners did not just say "murder" but organized murder; not

just rape but brutal murder of a rape victim. While the debates were admittedlyrather scanty, I believe that the available information shows that, whendeliberating on "heinousness", the Constitutional Commission did not have inmind the offenses already existing and already penalized with death. I alsobelieve that the heinousness clause requires that:

1)the crimes should be entirely new offenses, the elements of whichhave an inherent quality, degree or level of perversity, depravityor viciousness unheard of until then; or

2)even existing crimes, provided some new element or essentialingredient like "organized" or "brutal" is added to show theirutter perversity, odiousness or malevolence; or

3)the means or method by which the crime, whether new or old, iscarried out evinces a degree or magnitude of extreme violence,

evil, cruelty, atrocity, viciousness as to demonstrate itsheinousness. 21

For this purpose, Congress could enact an entirely new set of circumstancesto 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 heavierpenalty is prescribed.

Compelling Reasons

Quite apart from requiring the attendant element of heinousness, theConstitution also directs Congress to determine "compelling reasons" for therevival of the capital penalty. It is true that paragraphs 3 and 4 of the preambleof RA 7659 22 made some attempt at meeting this requirement. But such effortwas at best feeble and inconsequential. It should be remembered that everyword or phrase in the Constitution is sacred and should never be ignored,cavalierly-treated or brushed aside. Thus, I believe that the compelling reasonsand the characterization of heinousness cannot be done wholesale but must beshown for each and every crime, individually and separately.

The words "compelling reasons" were included in the Charter because, inthe words of Comm. Monsod, "in the future, circumstances may arise which weshould not preclude today . . . and that the conditions and the situation (duringthe deliberations of the Constitutional Commission) might change for veryspecific 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 EdcelLagman 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. Thatis one.

MR. LAGMAN.

So the compelling reason which the distinguished sponsor would like to justify or serve as an anchor for the justification of the reimposition of the death penalty is the alleged worsening peace and order situation.

The Gentleman claims that that is one of the compelling reasons. Butbefore we dissect this particular "compelling reason," may we knowwhat 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 kindlyelaborate on that answer? Why is justice a compelling reason as if justice was not obtained at the time the Constitution abolished thedeath penalty? Any compelling reason should be a superveningcircumstances after 1987.

MR. GARCIA (P.).

Mr. Speaker, I have repeatedly said again and again that if one lives in anorganized society governed by law, justice demands that crime be

punished and that the penalty imposed be commensurate with theoffense 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, itrefers to reasons which would supervene or come after the approvalof the 1987 Constitution. Is he submitting that justice, in his ownconcept of a commensurate penalty for the offense committed, wasnot obtained in 1987 when the Constitution abolished the deathpenalty 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 thistime, justice demands that the appropriate penalty must be meted outfor 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-decreeddeaths. In fact, I dare say that these "reasons" were even non-existent. Statisticsfrom the Philippine National Police show that the crime volume and crime rateparticularly on those legislated capital offenses did not worsen but in factdeclined between 1987, the date when the Constitution took effect, and 1993,the year when RA 7659 was enacted. Witness the following debate 24 alsobetween 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 usthe 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 thatcorrect, 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 deathpenalty? May we know from the distinguished Gentleman the volumeof 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. Couldthe 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 volumeof robbery cases declined from 22,942 in 1987 or crime rate of 40percent to 16,926 or a crime rate of 29 percent. Would the Gentlemanconfirm 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 22percent. The volume in 1988 was 11,132 or a crime rate of 19percent. Would the Gentleman confirm that, Mr. Speaker?

MR. GARCIA (P.).

As I Said, Mr. Speaker, we are reading from the same document and I wouldnot want to say that the Gentleman is misreading the document that Ihave 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 somefigures 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 figuredropped to 2,686 in 1988. cdtai

By the way, I will furnish my Colleagues with a photocopy of thisreport.

From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to2,862 in 1989. It still decreased to 2,202 in 1990, and it increased again to2,862 in 1991.

But in 1987, when the death penalty was abolished, as far as thedrug-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 thedeath penalty argue that its reimposition "would pose as an effective deterrentagainst heinous crimes." 26 However no statistical data, no sufficient proof,



empirical or otherwise, have been submitted to show with any conclusivenessthe relationship between the prescription of the death penalty for certainoffenses and the commission or non-commission thereof. This is a theory thatcan 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, prosecutionand conviction of the culprit without unnecessary risk, expense andinconvenience to the victim, his heirs or his witnesses — can be arguedindefinitely. 28 This debate can last till the academics grow weary of the spokenword, but it would not lessen the constitutionally-imposed burden of Congress toact within the "heinousness" and "compelling reasons" limits of its death-prescribing power.

Other Constitutional RightsMilitate Against RA 7659

It should be emphasized that the constitutional ban against the deathpenalty is included in our Bill of Rights. As such, it should — like any otherguarantee in favor of the accused — be zealously protected, 29 and any exception

thereto meticulously screened. Any doubt should be resolved in favor of thepeople, particularly where the right pertains to persons accused of crimes. 30 Herethe issue is not just crimes — but capital crimes!

So too, all our previous Constitutions, including the first one ordained atMalolos, guarantee that "(n)o person shall be deprived of life, liberty or propertywithout 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 1987Charter but is in fact fortified by its other pro-life and pro-human rightsprovisions. Hence, the Constitution values the dignity of every human personand guarantees full respect for human rights, 32 expressly prohibits any form of

torture 33 which is arguably a lesser penalty than death, emphasizes theindividual right to life by giving protection to the life of the mother and theunborn from the moment of conception 34 and establishes the people's rights tohealth, a balanced ecology and education. 35

This Constitutional explosion of concern for man more than property, forpeople more than the state, and for life more than mere existence augurs wellfor the strict application of the constitutional limits against the revival of deathpenalty as the final and irreversible exaction of society against its perceivedenemies.

Indeed, volumes have been written about individual rights to free speech,assembly and even religion. But the most basic and most important of theserights 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 factthat the death penalty militates against the poor, the powerless and themarginalized. The "Profile of 165 Death Row Convicts" submitted by the FreeLegal Assistance Group 36 highlights this sad fact:



"(1)Since the reimposition of the death penalty, 186 persons 37 havebeen sentenced to death. At the end of 1994, there were 24 deathpenalty convicts, at the end of 1995, the number rose to 90; anaverage of seven (7) convicts per month; double the monthly averageof capital sentences imposed the prior year. From January to June1996, the number of death penalty convicts reached 72, an average of 12 convicts per month, almost double the monthly average of capitalsentences imposed in 1995.

(2)Of the 165 convicts polled, approximately twenty one percent(21%) earn between P200 to P2,900 monthly; while approximatelytwenty seven percent (27%) earn between P3,000 to P3,999monthly. Those earning above P4,000 monthly are exceedingly few: sevenpercent (7%) earn between P4,000 to P4,999, four percent (4%)earn between P5,000 to P5,999, seven percent (7%) earnbetween P6,000 to P6,999, those earning between P7,000 toP15,000 comprise only four percent (4%), those earning P15,000and above only one percent (1%). Approximately thirteen percent

(13%) earn nothing at all, while approximately two percent (2%) earnsubsistence wages with another five percent (5%) earning variableincome. Approximately nine percent (9%) do not know how muchthey earn in a month. llibris

(3)Thus, approximately two-thirds of the convicts, about 112of them, earn below the government-mandated minimum monthlywage of P4,290; ten (10) of these earn below the official povertyline set by government. Twenty six (26) earn between P4,500.00 andP11,000.00 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 areunsure of their monthly income. Twenty two (22) convicts earnnothing 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 fivepercent (35%) are in the transport and construction industry, withthirty 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 themdrivers. Eighteen percent (18%) are in clerical, sales and serviceindustries, with fourteen (14) sales workers (engaged in buy and sell orfish, cigarette or rice vendors), twelve (12) service workers (butchers,beauticians, security guards, shoemakers, tour guides, computerprogrammers, radio technicians) and four (4) clerks, (janitors, MERALCOemployee and clerk). About four percent (4%) are governmentworkers, with six (6) persons belonging to the armed services (AFP, PNPand even CAFGU). Professionals, administrative employee andexecutives 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 thanhalf speak and understand Tagalog; twenty six percent (26%) , orabout one-fourth, speak and understand Cebuano. The rest speak andunderstand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense andWaray. One (1) convict is a foreign national and speaks and understandNiponggo.

(6)Approximately twelve percent (12%) graduated from college,about forty seven percent (47%) finished varying levels of elementary education with twenty seven (27) graduating fromelementary. About thirty five percent (35%), fifty eight (58) convicts,finished varying levels of high school, with more than half of themgraduating 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 situationssufficiently demonstrates that RA 7659 has militated against the poor and thepowerless in society — those who cannot afford the legal services necessary incapital crimes, where extensive preparation, investigation, research andpresentation are required. The best example to show the sad plight of theunderprivileged is this very case where the crucial issue of constitutionality waswoefully omitted in the proceedings in the trial court and even before this Courtuntil the Free Legal Assistance Group belatedly brought it up in the SupplementalMotion for Reconsideration.

To the poor and unlettered, it is bad enough that the law is complex andwritten in a strange, incomprehensible language. Worse still, judicial proceedingsare themselves complicated, intimidating and damning. The net effect of having

a death penalty that is imposed more often than not upon the impecunious is toengender in the minds of the latter, a sense — unfounded, to be sure, butunhealthy nevertheless — of the unequal balance of the scales of justice. cdtai

Most assuredly, it may be contended that the foregoing arguments, and inparticular, the statistics above-cited, are in a very real sense prone to bemisleading, and that regardless of the socio-economic profile of the DRCs, the lawreviving capital punishment does not in any way single out or discriminateagainst 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 andwritten 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, whateverthe penalties set by law, it seems to me that there will always be a certain classor classes of people in our society who, by reason of their poverty, lack of educational attainment and employment opportunities, are consequentlyconfined to living, working and subsisting in less-than-ideal environments,amidst less-than-genteel neighbors similarly situated as themselves, and aretherefore inherently more prone to be involved (as victims or perpetrators) invices, violence and crime. So from that perspective, the law reviving the deathpenalty 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 intheory) by posing a much stronger deterrent to the commission of heinouscrimes.

However, such a viewpoint simply ignores the very basic differences thatexist in the situations of the poor and the non-poor. Precisely because theunderprivileged 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 riseabove themselves and their situation. The basic postulates for such a positionare, I think, simply that everyone ultimately wants to better himself and that wecannot better ourselves individually to any significant degree if we are unable toadvance as an entire people and nation. All the pro-poor provisions of theConstitution point in this direction. Yet we are faced with this law that effectivelyinflicts the ultimate punishment on none other than the poor and disadvantagedin the greater majority of cases, and which penalty, being so obviously final andso 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 statutebooks. It did not merely suspend or prohibit its imposition.

(2)The Charter effectively granted a new right: the constitutional rightagainst the death penalty, which is really a species of the right to life.

(3)Any law reviving the capital penalty must be strictly construed againstthe State and liberally in favor of the accused because such a statute denigratesthe Constitution, impinges on a basic right and tends to deny equal justice to theunderprivileged. liblex

(4)Every word or phrase in the Constitution is sacred and should never beignored, cavalierly-treated or brushed aside.

(5)Congressional power to prescribe death is severely limited by twoconcurrent requirements:

(a)First, Congress must provide a set of attendant circumstanceswhich the prosecution must prove beyond reasonable

doubt, apart from the elements of the crime and itself.Congress must explain why and how these circumstancesdefine or characterize the crime as "heinous".

(b)Second, Congress has also the duty of laying out clear andspecific reasons which arose after the effectivity of theConstitution compelling the enactment of the law. It bearsrepeating that these requirements are inseparable. Theymust both be present in view of the specific constitutionalmandate — "for compelling reasons involving heinous



crimes." The compelling reason must flow from the heinousnature of the offense.

(6)In every law reviving the capital penalty, the heinousness andcompelling reasons must be set out for each and every crime, and not just for allcrimes generally and collectively.

"Thou shall not kill" is a fundamental commandment to all Christians, aswell as to the rest of the "sovereign Filipino people" who believe in AlmightyGod. 38 While the Catholic Church, to which the vast majority of our peoplebelong, acknowledges the power of public authorities to prescribe the deathpenalty, it advisedly limits such prerogative only to "cases of extreme gravity." 39

To quote Pope John Paul II in his encyclical Evangelium Vitae (A Hymn to Life), 40"punishment must be carefully evaluated and decided upon, and ought not go tothe extreme of executing the offender except in cases of absolute necessity: inother 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 Churchindubitably abhor the death penalty. Both are pro-people and pro-life. Bothclearly recognize the primacy of human life over and above even the state whichman created precisely to protect, cherish and defend him. The Constitutionreluctantly allows capital punishment only for "compelling reasons involvingheinous crimes" just as the Church grudgingly permits it only for reasons of "absolute necessity" involving crimes of "extreme gravity", which are very rareand practically non-existent.

In the face of these evident truisms, I ask: Has Congress, in enacting RA7659, amply discharged its constitutional burden of proving the existence of "compelling reasons" to prescribe death against well-defined "heinous" crimes?

I respectfully submit it has not.

WHEREFORE, premises considered, I respectfully vote to grant partially theSupplemental Motion for Reconsideration and to modify the dispositive portion of the decision of the trial court by deleting the words "DEATH, as provided forunder RA 7659," and substitute therefor reclusion perpetua .

I further vote to declare RA 7659 unconstitutional insofar as it prescribesthe penalty of death for the crimes mentioned in its text. cdasia

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 426Luzon Stevedoring Corp . v . Reyes , 71 SCRA 655; Agricultural and IndustriaMarketing Inc . v . CA, 118 SCRA 49; Vasco v . CA, 81 SCRA 712; Mindanao PortlandCement 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. 358Gabaya v . Hon . R . Mendoza , 113 SCRA 400; Bueno Industrial and DevelopmenCorp v . Encaje , 104 SCRA 388.

5.Ibid ., pp. 14-15 citing Molina v . dela Riva , 8 Phil. 569; Behn Meyer & Co . v . McMicking11 Phil. 276; Warmer Barnes & Co . v . Jaucian , 13 Phil. 4; Espiritu v . Crossfield , 14Phil. 588; Mata v . Lichauco , 36 Phil. 809; De la Costa v . Cleofas , 67 Phil. 686; Omarv . Jose , 77 Phil. 703; City of Butuan v . Ortiz , 113 Phil. 636; De los Santos vRodriguez , 22 SCRA 551; City of Cebu v . Mendoza , 66 SCRA 174.

6.29 Phil. 267 (1915), p. 270.

7.Section 1, Article VIII of the 1987 Constitution.

8.Section 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 Article 79 of the Revised Penal Code.

16.Modern Constitutional Law, Vol. I, p. 409, 1969 ed., citing Caritativo v . California , 357US 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 officiaholiday. 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 differentarithmetic and insists that it is less important to reach an unshakable decision thanto 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.:



1.Candelaria vs. Cañizares , 4 SCRA 738; Philippine Veterans Bank vs. IntermediateAppellate Court , 178 SCRA 645; Lipana vs. Development Bank of Rizal , 154 SCRA257; Lee vs. De Guzman , 187 SCRA 276; Bachrach Corporation vs. Court oAppeals , 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.:

*I have further explained my unflinching position on this matter in my recent bookBattles in the Supreme Court , particularly on pages 58 to 84.

SEPARATE OPINION:

1.It is called "Supplemental" because there was a (main) Motion for Reconsideration filedby 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 Curiam Decision of this Court waspromulgated on June 25, 1996.

3.Atty. Julian R. Vitug, Jr. cdtai

4. The bulk of jurisprudence precludes raising an issue for the first time only on appealSee, for instance, Manila Bay Club Corporation vs . Court of Appeals , 249 SCRA303, October 13, 1995; Manila Bay Club Corporation vs . Court of Appeals , 245SCRA 715, July 11, 1995; Securities and Exchange Commission vs . Court oAppeals , 246 SCRA 738, July 21, 1995. However, the Court resolved to tackle thequestion of constitutionality of Republic Act No. 7659 in this case, anticipating thatthe 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 thefirst opportunity. To let the issue pass unresolved just because it was raised afterthe promulgation of the decision affirming conviction may result in grave injustice.

5.I n People vs . Muñoz , 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, J J . Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino andMedialdea, concurring) that the death penalty was not abolished but onlyprohibited from being imposed. But see also the persuasive Dissenting Opinion ofMme. Justice Ameurfina Melencio-Herrera (joined by JJ . Narvasa, Paras, SarmientoCortes and Regalado) who contended that the Constitution totally abolished thedeath penalty and removed it from the statute books. People vs . Muñoz reversedthe earlier "abolition" doctrine uniformly held in People vs . Gavarra, 155 SCRA 327October 30, 1987, (per C . J . Yap); People vs . Masangkay, 155 SCRA 113, October27, 1987, (per J . Melencio-Herrera) and People vs . Atencio, 156 SCRA 242December 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 171986) as follows:

"Fr. Bernas:

xxx xxx xxx

"My recollection on this is that there was a division in the Committee not onwhether the death penalty should be abolished or not, but rather on whether theabolition should be done by the Constitution — in which case it cannot berestored by the legislature — or left to the legislature. The majority voted for theconstitutional abolition of the death penalty. And the reason is that capitalpunishment is inhuman for the convict and his family who are traumatized by thewaiting, even if it is never carried out. There is no evidence that the death penaltydeterred deadly criminals, hence, life should not be destroyed just in the hopethat other lives might be saved. Assuming mastery over the life of another manis 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 fromreviewing it. Human life is more valuable than an institution intended precisely toserve human life. So basically, this is the summary of the reasons which werepresented in support of the constitutional abolition of the death penalty.(underscoring supplied)

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

8. Thus in People vs . Burgos , 144 SCRA 1, September 4, 1986, we held that a statutewhich 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 thatRA 7659 has validly restored the death penalty which may now be imposedprovided that the prosecution proves, and the court is convinced, that (a) theaccused is guilty of a crime designated by RA 7659 as capital, (b) whosecommission is accompanied by aggravating circumstances as defined by Arts. 14and 15 of the Revised Penal Code, (c) the accompanying aggravatingcircumstance must be one which can be characterized by the court as making thecrime "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 isthe courts — not Congress — that have the responsibility of determining theheinousness of a crime and the compelling reason for its imposition upon aparticular offender, depending on the facts of each case. I cannot howeversubscribe to this view. The Constitution clearly identifies Congress as thesovereign entity which is given the onus of fulfilling these two constitutionalimitations.

10.People vs . Muñoz, 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, 1995People 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 IllegaDetention; Art. 294 — Robbery with violence against or intimidation of persons;Art. 320 — Destructive Arson; Art. 335 — Rape.

13.Art. 211-A on Qualified Bribery.14.Section 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 ConstructionSecond Edition 1990; Martin, Statutory Construction, Sixth Edition, 1984). Thefunction of the preamble is to supply reasons and explanation and not to conferpower or determine rights. Hence it cannot be given the effect of enlarging thescope or effect of a statute. (C. Dallas Sands, Statutes and Statutory

Construction, Fourth Edition, Volume IA, Â§ 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," orwhen it is "committed with any of the attendant circumstances enumerated" in saidsection.

17.While plunder and qualified bribery are "new" capital offenses, RA 7659 nonetheless

fails to justify why they are considered heinous. In addition, the specific compellingreasons for the prescribed penalty of death are not laid out by the statute.

18.In the case of rape, RA 7659 provided certain attendant circumstances which theprosecution must prove before courts can impose the extreme penalty. Just thesame however, the law did not explain why said circumstances would make thecrimes heinous. Neither did it set forth the compelling reasons therefor.

19.Record of the Senate, First Regular Session, January 18 to March 11, 1993, VolumeIII, 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 thepronunciation. Will the Gentleman give examples of 'heinous crimes'? For example,would the head of an organized syndicate in dope distribution or dope smugglingfall within the qualification of a heinous offender such as to preclude the applicationof the principle of abolition of death penalty?

MR. MONSOD.Yes, Madam President. That is one of the possible crimes that wouldqualify for a heinous crime. Another would be organized murder. In other wordsyesterday 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 — think it was Honorable Laurel who said this yesterday — it is only God who givesand takes life. However, the voice of the people is also the voice of God, and wecannot presume to have the wisdom of the ages. Therefore, it is entirely possiblein 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 yesterdaywere 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 itswisdom and as representatives of the people, to still impose the death penalty forthe common good, in specific cases.

MR. SUAREZ.Thank you.

I would like to pursue some more the Gentleman's definition of 'heinous crimes.' Wouldthe brutal murder of a rape victim be considered as falling within thatclassification?

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 hisposition in authority.

MR. SUAREZ.Thank you."

21.Some examples of this may be taken by Congress from Richmond vs . Lewis , 506 US40, 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 affectedthe nation's efforts towards sustainable economic development and prosperitywhile at the same time has undermined the people's faith in the Government andthe 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, andthe need to rationalize and harmonize the penal sanctions for heinous crimesfinds compelling reasons to impose the death penalty for said crimes;"

23.Record of the House of Representatives, First Regular Session, 1992-1993, VolumeIV, February 10, 1993, p. 674, underscoring supplied.

24.Record of the House of Representatives, First Regular Session, 1992-1993, Vol. III,November 10, 1992, p. 448; underscoring supplied.

25.Record of the Senate, First Regular Session, January 18 to March 11, 1993, VolumeIII, No. 50, January 27, 1993, pp. 176-177.

26.See "Sponsorship Remarks" of Rep. Manuel Sanchez, Record of the House ofRepresentatives, 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 wasevidence to show that the death penalty had deterred the commission of deadlycrimes, none of them was able to say that there was evidence, conclusiveevidence, for that.

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

what?FR. BERNAS.Penologists.

MR. RAMA.Of course, we are aware that there is also another school of thought here,another set of experts, who would swear that the death penalty discouragescrimes or criminality. Of course, Commissioner Bernas knows that never in ourhistory has there been a higher incidence of crime. I say that criminality was at itszenith 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 anyrate, does the sponsor think that in removing the death penalty, it would notaffect, 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 thisprovision is that means other than the death penalty should be used for theprevention of crime."

28.C f . Report to the United Nations Committee on Crime Prosecution and ControlUnited Nations Social Affairs Division, Crime Prevention and Criminal Justice

Branch, Vienna, 1988, p. 110.29.Former Chief Justice Enrique M. Fernando, in his book The Bill of Rights, (Second

Edition, 1972, p. 4) states: "A regime of constitutionalism is thus unthinkablewithout an assurance of the primacy of a bill of rights. Precisely a constitutionexists to assure that in the discharge of the governmental functions, the dignitythat is the birthright of every human being is duly safeguarded. . . ." In the contextof the role of a bill of rights the vast powers of government are clearly to beexercised within the limits set by the constitution, particularly the bill of rights. InErmita-Malate Hotel and Motel Operators vs . City Mayor of Manila , (L-24693, July31, 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. Theguarantee in Sec. 1 of Article III of the Constitution embraces life, liberty andproperty. In the words of Justice Roberto Concepcion in People vs . Hernandez , (99Phil. 515, 551-2 [1956]), " . . . individual freedom is too basic, too transcendentaand vital in a republican state, like ours, to be denied upon mere general principlesand abstract consideration of public safety. Indeed, the preservation of liberty issuch a major preoccupation of our political system that, not satisfied withguaranteeing its enjoyment in the very first paragraph of section (1) of the Bill ofRights, 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 inthe 1987 Constitution, according to Fr. Bernas.

30.See, for instance, People vs . Sinatao , 249 SCRA 554, 571, October 25, 1995, andPeople 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 datedSeptember 26, 1996 filed by the Free Legal Assistance Group in People vs Malabago , G.R. No. 115686, December 2, 1996.

37. The FLAG-submitted Profile states that 186 have been sentenced to death by triacourts since the effectivity of RA 7659. The Philippine Star issue of December 91996, page 17, however reports that, quoting Sen. Ernesto Herrera, the totanumber of death row inmates has gone up to 267, as of November, 1996, ofwhom more than one half (139) are rape convicts. Some major dailies (PhilippineDaily Inquirer, Philippine Star, Manila Standard ) in their February 3, 1997 issue upthe death row figure to 300, as of the end of January 1997, with 450 as theprobable number at the end of 1997.

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

people's" imploration of the "aid of Almighty God".39.Catechism of the Catholic Church, p. 512, Word and Life Publications:

"2266.Preserving the common good of society requires rendering the aggressorunable to inflict harm. For this reason the traditional teaching of the Church hasacknowledged as well-founded the right and duty of legitimate public authority topunish malefactors by means of penalties commensurate with the gravity of thecrime, not excluding, in cases of extreme gravity, the death penalty. Foranalogous reasons those holding authority have the right to repel by armedforce 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 ! Yetfrom the beginning, faced with the many and often tragic cases which occur inthe life of individuals and society, Christian reflection has sought a fuller anddeeper understanding of what God's commandment prohibits and prescribes. There are, in fact, situations in which values proposed by God's Law seem toinvolve 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 intrinsicvalue of life and the duty to love oneself no less than others are the basis of atrue right to self-defence . The demanding commandment of love of neighbor, setforth 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 lovewhich 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 sublimeexample of this self-offering is the Lord Jesus himself.

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

reason.

56.This is the context in which to place the problem of the death penalty . On thismatter there is a growing tendency, both in the Church and in civil society, todemand that it be applied in a very limited way or even that it be abolishedcompletely. The problem must be viewed in the context of a system of penal justice even more in line with human dignity and thus, in the end, with God's planfor man and society. The primary purpose of the punishment which societyinflicts is "to redress the disorder caused by the offence." Public authority mustredress the violation of personal and social rights by imposing on the offender an

adequate punishment for the crime, as a condition for the offender to regain theexercise 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 timeoffering the offender an incentive and help to change his or her behavior and berehabilitated.

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 tothe extreme of executing the offender except in cases of absolute necessity: inother words, when it would not be possible otherwise to defend society. Todayhowever, as a result of steady improvements in the organization of the penal

system, such cases are very rare, if not practically non-existent.

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

Echegaray v Secretary of Justice

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