May 05, 2017 LEGALITY OF THE

REIMPOSITION OF
DEATH PENALTY
FOR HEINOUS
CRIME IN THE
PHILIPPINES
A Legal Memorandum
(Legal Writing Requirement under
Atty. Fideliz Cardellie Diaz)

NOR-AINE M. TAWANTAWAN
FIRST YEAR-JD 4103
 M e m o r a n d u m

DATE: May 5, 2017

TO: Fideliz Cardellie Diaz

FROM: Nor-aine Tawantawan [mailto:ainetee@gmail.com]

RE: Legality of the Reimposition of Death Penalty for Heinous Crimes

A. INTRODUCTION

This memorandum discusses the legality of reimposition of Death Penalty for heinous crimes
considering the international treaty obligations of the Philippines.

B. STATEMENT OF FACTS

Death penalty is the most common capital punishment which may be imposed by a state against those
who will break its enforced laws. In the present times, several states are still upholding this kind of
penalty but there are also some that totally abolished it. In the Philippines, it is currently suspended.1
The controversial pronouncement of President Rodrigo Duterte, even during the campaign period, is
his standard to restore death penalty in the country and has been identified as one of the priority bills
of the Duterte administration2 which instigated disapproval from Catholic and Protestant churches,
Amnesty International, and individuals. There are also those who support to restore it considering the
current situations in the country such as high crimes and corruptions.3 However, despite numerous
views about the reimposition of death penalty in the country, it spurred the reenactment of the bill in
the Congress. Among others, the most debated areas about the reimposition of death penalty in the
Philippines is its constitutionality as a law itself and its bearing on the country’s international treaty
obligations.4 Considering these reasons, this is conducted to analyze the legality of the reimposition
of death penalty in the Philippines considering its international treaty obligations.

C. THE ISSUES

(1) Whether death penalty is unconstitutional.

(2) Whether the reimposition of death penalty in the Philippines will violate its international treaty
obligations.

1
newsinfo.inquirer.net/785954/in-the-know-death-penalty.
2
Kathrina Alvarez. “Senate Approval on Death Proposal Uncertain” GMA News Online. December 5, 2016.
Accessed on December 10, 2016. http://www.gmanetwork.com/news/story/591610/news/nation/senate-
approval-on-death-penalty-proposal uncertain#sthash.qNx3xKkO.dpuf
3
DomIni Torevillas. “Death Penalty” The Philippine Star, June 21, 2016. Accessed on December 10, 2016.
http://www.philstar.com/opinion/2016/06/21/1595099/death-penalty.
4
www.chr.gov.ph
D. DISCUSSION AND ANALYSIS

(1) Death Penalty is Not Unconstitutional.

It is a rule that “the Constitution is the highest, basic and paramount law to which all other laws must
conform and to which all persons, including the highest officials, must defer.”5 Therefore, any law
that will be enacted inconsistent with the Constitution will be considered void and unconstitutional.

The 1987 Constitution of the Philippines reads:

Excessive fines shall not be imposed, nor cruel, degrading or inhuman

punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter
provides for it. Any death penalty already imposed shall be reduced to
reclusion perpetua.6 (Emphasis supplied)

As can be shown, the above provision does not absolutely prohibit the imposition of death penalty as
it provides conditions to be met for the death penalty to be imposed. The Congress, then, has the
discretion to pass a law reimposing the death penalty for compelling reasons involving heinous crimes.
Therefore, the death penalty is not unconstitutional.

(2) Reimposition of Death Penalty in the Philippines will violate International Treaty
Obligations.

The principle of Pacta Sunt Servanda is highly observed in the Philippines which means that
international treaty obligations must be complied with in good faith.7 Under the 1987 Philippine
Constitution, our country adopts the generally accepted principles of the international law as part of
the law of the land.8 It is also a rule in International law that a country can only denounce a treaty or
withdraw from a treaty when the treaty contains provisions on withdrawal and denouncement.9

The Philippines is a member and signatory of eight of the nine international human rights treaties that
emphasized on the right of every individual to life. Some of the international treaties is the
International Covenant on Civil and Political Rights (ICCPR), an international treaty that, among
other things, prescribes states to respect and observe fundamental freedoms. These include freedom of
expression, freedom of religion, and freedom from cruel, inhumane, or degrading punishment. and to
the Second Optional Protocol of the ICCPR on the abolishment of the death penalty.10 According to
Article 6, paragraph 2, countries that have already abolished the death penalty cannot reintroduce and
impose this punishment, even for most serious crimes.

5
Cruz, Isagani (2012) Commentaries on Political Law. pp. 6-7.
6
1987 Philippine Constitution, Article III, Section 19 (1).
7
http://bangkok.ohchr.org
8
1987 Philippine Constitution, Article II, Section 2.
9
http://www.gmanetwork.com/news/news/nation/599848/reviving-death-penalty-violates-treaty-
obligations-int-l-experts/story/#sthash.cQz1W5OF.dpuf
10
http://cnnphilippines.com/news/2016/08/02/return-of-death-penalty-ph-violates-international-law.html
 In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes…11

The Philippines has abolished the death penalty through Republic Act No. (R.A.) 93461 which reads:

The imposition of the penalty of death is hereby prohibited. Accordingly,

Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No.
8177), otherwise known as the Act Designating Death by Lethal Injection is
hereby repealed, Republic Act No. Seven Thousand Six Hundred Fifty-Nine
(R.A. No. 7659), otherwise known as the Death Penalty Law, and all other
laws, executive orders and decrees, insofar as they impose the death penalty
are hereby repealed or amended accordingly.

The Second Optional Protocol to the International Covenant on Civil and Political Rights aimed at
the abolition of the death penalty and prevents them from carrying out executions.12 In 2007, the
Philippines ratified the Second Optional Protocol to the ICCPR which aims at the abolition of the
death penalty. When a State ratifies the Second Option Protocol, it guarantees that no one can be
executed within its jurisdiction. International law does not permit a State that has ratified or acceded
to the Second Optional Protocol to denounce or withdraw from it.13 Therefore, the Philippines would
violate its obligations under international human rights law if it reintroduced the death penalty.

F. CONCLUSION

Considering the foregoing, the reimposition of death penalty in the Philippines will be unlawful. There
is no contradiction between the ICCPR, Second Optional Protocol and the Philippine Constitution.
The general rule is the Philippine Constitution does not absolutely prohibit death penalty as it provides
for an exception and that is for compelling reasons involving heinous crimes but in no way does it also
mandate that the death penalty be put into effect. In the Constitution, our country adopts the generally
accepted principles of the international law as part of the law of the land so these mentioned treaties
must be complied with in good faith and must be respected otherwise the Philippines might lose its
standing in the international community by impairing the credibility of the Philippines as a law-
abiding state and as a state that respects its international obligation. Our Constitution does not even
make death penalty mandatory.

F. RECOMMENDATION

There is no obligation to have death penalty and that the only way to respect both international law
obligations and our constitution is not to reimpose the death penalty in the Philippines.

11
ICCPR Article 6, paragraph 2.
12
http://cnnphilippines.com/news/2016/08/02/return-of-death-penalty-ph-violates-international-law.html
13
http://bangkok.ohchr.org/files/Legal%20Arguments_ICCPR_Second%20Op%20Protocol_Feb%202017.pdf