(Crimrev) People V Echagaray

SUPREME COURT REPORTS ANNOTATED VOLUME 267 15/2/21, 4:08 PM
682 SUPREME COURT REPORTS ANNOTATED

People us. Echegaray
*
G.R. No. 117472. February 7, 1997.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

LEO ECHEGARAY y PILO, accused-appellant.
Remedial Law; Appeal; Matters neither alleged in the pleadings

nor raised during the proceedings below cannot be ventilated for the
first time on appeal before the Supreme Court.·It is a rudimentary
principle of law that matters neither alleged in the pleadings nor
raised during the proceedings below cannot be ventilated for the
first time on appeal before the Supreme Court. Moreover, as we
have stated in our Resolution in Manila Bay Club Corporation v.
Court of Appeals: „If well-recognized jurisprudence precludes
raising an issue only for the first time on appeal proper, with more
reason should such issue be disallowed or disregarded when
initially raised only in a motion for reconsideration of the decision of
the appellate court.‰
Criminal Procedure; Affidavits; An affidavit of desistance is
merely an additional ground to buttress the accusedÊs defenses not
the sole consideration that can result in acquittal.·It must be
stressed that during the trial proceedings of the rape case against
the ac-
_______________
* EN BANC.
683
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VOL. 267, FEBRUARY 7, 1997 683
People vs. Echegaray
cused-appellant, it appeared that despite the admission made by

the victim herself in open court that she had signed an Affidavit of
Desistance, she, nevertheless, „strongly pointed out that she is not
withdrawing the charge against the accused because the latter
might do the same sexual assaults to other women.‰ Thus, this is
one occasion where an affidavit of desistance must be regarded with
disfavor inasmuch as the victim, in her tender age, manifested in
court that she was pursuing the rape charges against the
accusedappellant. We have explained in the case of People v. Gerry
Ballabare, that: „As pointed out in People v. Lim (190 SCRA 706
[1990], which is also cited by the accused-appellant, an affidavit of
desistance is merely an additional ground to buttress the accusedÊs
defenses, not the sole consideration that can result in acquittal.
There must be other circumstances which, when coupled with the
retraction or desistance, create doubts as to the truth of the
testimony given by the witnesses at the trial and accepted by the
judge.‰
Constitutional Law; Death Penalty; Our courts are not the fora
for a protracted debate on the morality or propriety of the death
sentence where the law itself provides therefor in specific and
welldefined criminal acts.·Consequently, we have time and again
emphasized that our courts are not the fora for a protracted debate
on the morality or propriety of the death sentence where the law
itself provides therefor in specific and well-defined criminal acts.
Thus we had ruled in the 1951 case of Limaco that: „x x x there are
quite a number of people who honestly believe that the supreme
penalty is either morally wrong or unwise or ineffective. However,
as long as that penalty remains in the statute books, and as long as
our criminal law provides for its imposition in certain cases, it is the
duty of judicial officers to respect and apply the law regardless of
their private opinions.‰ and this we have reiterated in the 1995 case
of People v. Veneracion.
Same; Same; Congress has the power to re-impose the death
penalty for compelling reasons involving heinous crimes.·Article
III, Section 19(1) of the 1987 Constitution plainly vests in Congress
the power to re-impose the death penalty „for compelling reasons
involving heinous crimes.‰ This power is not subsumed in the
plenary legislative power of Congress, for it is subject to a clear
showing of „compelling reasons involving heinous crimes.‰ The
constitutional exercise of this limited power to re-impose the death
penalty entails: (1) that Congress define or describe what is meant

by heinous crimes; (2) that Congress specify and penalize by death,
only crimes
684
that qualify as heinous in accordance with the definition or

description set in the death penalty bill and/or designate crimes
punishable by reclusion perpetua to death in which latter case,
death can only be imposed upon the attendance of circumstances
duly proven in court that characterize the crime to be heinous in
accordance with the definition or description set in the death
penalty bill; and (3) that Congress, in enacting this death penalty
bill be singularly motivated by „compelling reasons involving
heinous crimes.‰
Same; Same; Definition of Heinous Crimes.·In the second
whereas clause of the preamble of R.A. No. 7659, we find the
definition or description of heinous crimes. Said clause provides
that: „x x x crimes punishable by death under this Act are heinous
for being grievous, odious and hateful offenses and which, by reason
of their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered
society.‰ Justice Santiago Kapunan, in his dissenting opinion in
People v. Alicando, traced the etymological root of the word
„heinous‰ to the Early SpartansÊ word, „haineus,‰ meaning, hateful
and abominable, which, in turn, was from the Greek prefix „haton,‰
denoting acts so hatefully or shockingly evil.
Same; Same; R.A. No. 7659; Insofar as the element of
heinousness is concerned, R.A. No. 7659 has correctly identified
crimes warranting the mandatory penalty of death.·We have no
doubt, therefore, that insofar as the element of heinousness is
concerned, R.A. No. 7659 has correctly identified crimes warranting
the mandatory penalty of death. As to the other crimes in R.A. No.
7659 punished by reclusion perpetua to death, they are admittingly
no less abominable than those mandatorily penalized by death. The
proper time to determine their heinousness in contemplation of law,
is when on automatic review, we are called to pass on a death
sentence involving crimes punishable by reclusion perpetua to

death under R.A. No. 7659, with the trial court meting out the
death sentence in exercise of judicial discretion, This is not to say,
however, that the aggravating circumstances under the Revised
Penal Code need be additionally alleged as establishing the
heinousness of the crime for the trial court to validly impose the
death penalty in the crimes under R.A. No. 7659 which are
punished with the flexible penalty of reclusion perpetua to death.
685
VOL. 267, FEBRUARY 7, 1997 685
Same; Same; Same; R.A. No. 7659 provides the test and
yardstick for the determination of the legal situation warranting the
imposition of the supreme penalty of death.·In the first place, the
1987 Constitution did not amend or repeal the provisions of the
Revised Penal Code relating to aggravating circumstances.
Secondly, R.A. No, 7659, while it specifies circumstances that
generally qualify a crime provided therein to be punished by the
maximum penalty of death, neither amends nor repeals the
aggravating circumstances under the Revised Penal Code. Thus,
construing R.A. No, 7659 in pari materia with the Revised Penal
Code, death may be imposed when: (1) aggravating circumstances
attend the commission of the crime as to make operative the
provision of the Revised Penal Code regarding the imposition of the
maximum penalty; and (2) other circumstances attend the
commission of the crime which indubitably characterize the same as
heinous in contemplation of R.A. No. 7659 that justify the
imposition of death, albeit the imposable penalty is reclusion
perpetua to death. Without difficulty, we understand the rationale
for the guided discretion granted in the trial court to cognize
circumstances that characterize the commission of the crime as
heinous. Certainly there is an infinity of circumstances that may
attend the commission of a crime to the same extent that there is no
telling the evil that man is capable of. The legislature cannot and
need not foresee and inscribe in law each and every loathsome act
man is capable of. It is sufficient thus that R.A. No. 7659 provides
the test and yardstick for the determination of the legal situation
warranting the imposition of the supreme penalty of death.
Needless to say, we are not unaware of the ever existing danger of
abuse of discretion on the part of the trial court in meting out the
death sentence. Precisely to reduce to nil the possibility of executing
an innocent man or one criminal but not heinously criminal, R.A.

No. 7659 is replete with both procedural and substantive
safeguards that ensure only the correct application of the mandate
of R.A. No. 7659.
Same; Same; Same; Furman did not outlaw the death penalty
because it was cruel and unusual per se.·The issue in Furman was
not so much death penalty itself but the arbitrariness pervading the
procedures by which the death penalty was imposed on the accused
by the sentencing jury. Thus, the defense theory in Furman
centered not so much on the nature of the death penalty as a
criminal sanction but on the discrimination against the black
accused who is meted out the death penalty by a white jury that is
given the unconditional discretion to determine whether or not to
impose the death
686
penalty. In fact, the long road of the American abolitionist

movement leading to the landmark case of Furman was trekked by
American civil rights advocates zealously fighting against racial
discrimination. x x x Furman, thus, did not outlaw the death
penalty because it was cruel and unusual per se. While the U.S.
Supreme Court nullified all discretionary death penalty statutes in
Furman, it did so because the discretion which these statutes
vested in the trial-judges and sentencing juries was uncontrolled
and without any parameters, guidelines, or standards intended to
lessen, if not altogether eliminate, the intervention of personal
biases, prejudices and discriminatory acts on the part of the trial
judges and sentencing juries.
SEPARATE OPINION:
Remedial Law; Appeal; Same; Same; Determination of when to

prescribe the death penalty now lies with the sound discretion of the
law-making authority, the Congress of the Philippines subject to the
conditions that the fundamental law has set forth.·The
determination of when to prescribe the death penalty now lies with
the sound discretion of the law-making authority, the Congress of
the Philippines, subject to the conditions that the fundamental law

has set forth; viz: (1) That there must be compelling reasons to
justify the imposition of the death penalty; and (2) That the capital
offense must involve a heinous crime.
SEPARATE OPINION:
Remedial Law; Appeal; The automatic commutation or

reduction to reclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that while the
conviction of an accused for a capital crime remains death as a
penalty ceased to exist in our penal laws and thus may no longer be
carried out.·Section 19, Article III of the 1987 Constitution
provides: „Sec. 19. (1) 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.‰
(Italics supplied) The second and third sentences of the above
provision are new and had not been written in the 1935, 1973 or
even in the 1986 „Freedom Constitution.‰ They proscribe the
imposition of the death penalty „unless for compelling reasons
involving heinous crimes, Congress provides for
687
VOL. 267, FEBRUARY 7, 1997 687
it,‰ and reduced „any death penalty already imposed‰ to reclusion

perpetua. The provision has both a prospective aspect (it bars the
future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the Constitution
did not merely suspend the imposition of the death penalty, but in
fact completely abolished it from the statute books. The automatic
commutation or reduction to reclusion perpetua of any death
penalty extant as of the effectivity of the Constitution clearly
recognizes that, while the conviction of an accused for a capital
crime remains, death as a penalty ceased to exist in our penal laws
and thus may no longer be carried out. This is the clear intent of the
framers of our Constitution.
Same; Same; R.A. No. 7659 did not change the nature or the
elements of the crimes stated in the Penal Code and in the special
laws.·But RA 7659 did not change the nature or the elements of
the crimes stated in the Penal Code and in the special laws. It
merely made the penalty more severe. Neither did its provisions
(other than the preamble, which was cast in general terms) discuss
or justify the reasons for the more severe sanction, either
collectively for all the offenses or individually for each of them.
Generally, it merely reinstated the concept of and the method by
.which the death penalty had been imposed until February 2, 1987,
when the Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission of which was
accompanied by aggravating circumstances not outweighed by
mitigating circumstances.
Same; Same; R.A. 7659 merely amended certain laws to
prescribe death as the maximum imposable penalty once the court
appreciates the presence or absence of aggravating circumstances.
·As already alluded to, RA 7659 merely amended certain laws to
prescribe death as the maximum imposable penalty once the court
appreciates the presence or absence of aggravating circumstances.
ThereÊs nothing really new that Congress did which it could not
have otherwise done had such provision not been included in our
fundamental law. In other words, it just reinstated capital
punishment for crimes which were already punishable with death
prior to the effectivity of the 1987 Constitution. With the possible
exception of plunder and qualified bribery, no new crimes were
introduced by RA 7659. The offenses punished by death under said
law were already so punishable by the Revised Penal Code and by
special laws. In short, Sec. 19, Article III of the Constitution did not
have any impact
688
upon the legislative action. It was effectively ignored by Congress in

enacting the capital punishment law.
MOTION FOR RECONSIDERATION of a decision of the

Supreme Court.
The facts are stated in the resolution of the Court.

The Solicitor General for plaintiff-appellee.
Free Legal Assistance Group, Anti-Death Penalty
Task Force for accused-appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant

case affirming the conviction of the accused-appellant for
the crime of raping his ten-year old daughter. The crime
having been committed sometime in April, 1994, during
which time Republic Act (R.A.) No. 7659, commonly known
as the Death Penalty Law, was already in effect, accused-
appellant was inevitably meted out the supreme penalty of
death.
On July 9, 1996, the accused-appellant timely filed a
Motion for Reconsideration which focused on the sinister
motive of the victimÊs grandmother that precipitated the
filing of the alleged false accusation of rape against the
accused. We find no substantial arguments on the said
motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the
defense counsel, Atty. Julian R. Vitug, and retained the
services of the Anti-Death Penalty Task Force of the Free
Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental
Motion for Reconsideration prepared by the FLAG on
behalf of accused-appellant. The motion raises the
following grounds for the reversal of the death sentence;
689
VOL. 267, FEBRUARY 7, 1997 689

"[1] Accused-appellant should not have been prosecuted

since the pardon by the offended party and her
mother before the filing of the complaint acted as a
bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the
commission of the offense in the Complaint and
throughout trial prevented the accused-appellant
from preparing an adequate defense.

[3] The guilt of the accused was not proved beyond a
reasonable doubt.
[4] The Honorable Court erred in finding that the
accusedappellant was the father or stepfather of the
complainant and in affirming the sentence of death
against him on this basis.
[5] The trial court denied the accused-appellant of due
process and manifested bias in the conduct of the
trial.
[6] The accused-appellant was denied his
constitutional right to effective assistance of
counsel and to due process, due to the incompetence
of counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is
unconstitutional per se:
a. For crimes where no death results from the offense,

the death penalty is a severe and excessive penalty
in violation of Article III, Sec. 19(1) of the 1987
Constitution.
b. The death penalty is cruel and unusual punishment
in violation of the Article III, Sec. 11 of the 1987
Constitution.‰
In sum, the Supplemental Motion for Reconsideration

raises three (3) main issues: (1) mixed factual and legal
matters relating to the trial proceedings and findings; (2)
alleged incompetence of accused-appellantÊs former counsel;
and (3) purely legal question of the constitutionality of R.A.
No. 7659.
It is a rudimentary principle of law that matters neither

alleged in the pleadings nor raised during the proceedings
below cannot be ventilated for the first time on appeal
before the Supreme Court. Moreover, as we have stated in
our Resolution
1
in Manila Bay Club Corporation v. Court of
Appeals:
________________
1 249 SCRA 303, 307–308.
690

„If well-recognized jurisprudence precludes raising an issue only for

the first time on appeal proper, with more reason should such issue
be disallowed or disregarded when initially raised only in a motion
for reconsideration of the decision of the appellate court.‰
It is to be remembered that during the proceedings of the

rape case against the accused-appellant before the sala of
then presiding judge Maximiano C. Asuncion, the defense
attempted to prove that:
a) the rape case was motivated by greed, hence, a

mere concoction of the alleged victimÊs maternal
grandmother;
b) the accused is not the real father of the
complainant;
c) the size of the penis of the accused cannot have
possibly penetrated the alleged victimÊs private
part; and
d) the accused was in Parañaque during the time of
the alleged rape.
In his Brief before us when the rape case was elevated for
automatic review, the accused-appellant reiterated as
grounds for exculpation:
a) the ill-motive of the victimÊs maternal grandmother

in prompting her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis
which could not have caused the healed hymenal
lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new

counsel of the accused-appellant reveals that in their
messianic appeal for a reversal of our judgment of
conviction, we are asked to consider for the first time, by
way of a Supplemental Motion for Reconsideration, the
following matters:
a) the affidavit of desistance written by the victim

which acted as a bar to the criminal prosecution for
rape against the accused-appellant;
b) the vagueness attributed to the date of the
commission of the offense in the Complaint which
deprived the accused-appellant from adequately
defending himself;
691
VOL. 267, FEBRUARY 7, 1997 691

c) the failure of this Court to clearly establish the

qualifying circumstance that placed the accused-
appellant within the coverage of the Death Penalty
Law;
d) the denial of due process and the manifest bias
exhibited by the trial court during the trial of the
rape case.
Apparently, after a careful scrutiny of the foregoing points

for reconsideration, the only legitimate issue that We can
tackle relates to the Affidavit of Desistance which touches
on the lack of jurisdiction of the trial court to have
proceeded with the prosecution of the accused-appellant
considering that the issue of jurisdiction over the subject
2
matter may be raised at any time, even during appeal.
It must be stressed that during the trial proceedings of
the rape case against the accused-appellant, it appeared
that despite the admission made by the victim herself in
open court that she had signed an Affidavit of Desistance,
she, nevertheless, „strongly pointed out that she is not
withdrawing the charge against the accused because the3
latter might do the same sexual assaults to other women."
Thus, this is one occasion where an affidavit of desistance
must be regarded with disfavor inasmuch as the victim, in
her tender age, manifested in court that she was pursuing
the rape charges against the accused-appellant.
We have 4
explained in the case of People v. Gerry
Ballabare, that:
„As pointed out in People v. Lim (190 SCRA 706 [1990], which is
also cited by the accused-appellant, an affidavit of desistance is
merely an additional ground to buttress the accusedÊs defenses, not

the sole consideration that can result in acquittal. There must be
other circumstances which, when coupled with the retraction or
________________
2 See Amigo v. Court of Appeals, 253 SCRA 382, 390 [1996]; De Leon v. Court
of Appeals, 245 SCRA 166, 172 [1995].
3 RTC Decision, p. 3; Rollo, p. 19.
4 G.R. No. 108871 promulgated on November 19, 1996.
692

desistance, create doubts as to the truth of the testimony given by

5
the witnesses at the trial and accepted by the judge."
In the case at bar, all that the accused-appellant offered as

defenses mainly consisted of denial and alibi which cannot
outweigh the positive identification and convincing
testimonies given by the prosecution. Hence, the affidavit
of desistance, which the victim herself intended to
disregard as earlier discussed, must have no bearing on the
criminal prosecution against the accused-appellant,
particularly on the trial courtÊs jurisdiction over the case.
II
The settled rule is that the client is 6bound by the

negligence or mistakes of his counsel. One of the
recognized exceptions to this rule is gross incompetency in
a way that the defendant is highly prejudiced and
prevented,
7
in effect, from having his day in court to defend
himself.
In the instant case, we believe that the former counsel of
the accused-appellant to whom the FLAG lawyers now
impute incompetency had amply exercised the required
ordinary diligence or that reasonable decree of care and
skill expected of him relative to his clientÊs defense. As the
rape case was being tried on the merits, Atty. Vitug, from
the time he was assigned to handle the case, dutifully
attended the hearings thereof. Moreover, he had seasonably
submitted the AccusedAppellantÊs Brief and the Motion for
Reconsideration of our June 25, 1996 Decision with
extensive discussion in support of his line of defense. There

is no indication of gross incompetency that could have
resulted from a failure to present any
________________
5 People v. Pimentel, 118 SCRA 695 [1982]; citing People v. Manigbas,

109 Phil. 469 [1960].
6 Greenhills Airconditioning and Services, Inc. v. National Labor
Relations Commission, 245 SCRA 384, 389 [1995]; Arambulo v. Court of
Appeals, 226 SCRA 589, 601 [1993]; Que v. Court of Appeals, 101 SCRA
13 [1980].
7 Suarez v. Court of Appeals, 220 SCRA 274, 279–280 [1993].
693
VOL. 267, FEBRUARY 7, 1997 693

argument or any witness to defend his client. Neither has

he acted haphazardly in the preparation of his case against
the prosecution evidence. The main reason for his failure to
exculpate his client, the accused-appellant, is the
overwhelming evidence of the prosecution. The alleged
errors committed by the previous counsel as enumerated by
the new counsel could not have overturned the judgment of
conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition

of death as punishment for violation of law or custom,
religious or secular, is an ancient practice. We do know that
our forefathers killed to avenge themselves and their kin
and that initially, the criminal law was used to compensate
for a wrong done to a private party or his family, not to
punish in the name of the state.
The dawning of civilization brought with it both the
increasing sensitization throughout the later generations
against past barbarity and the institutionalization of state
power under the rule of law. Today every man or woman is
both an individual person with inherent human rights
recognized and protected by the state and a citizen with the
duty to serve the common weal and defend and preserve
society.
One of the indispensable powers of the state is the power

to secure society against threatened and actual evil.
Pursuant to this, the legislative arm of government enacts
criminal laws that define and punish illegal acts that may
be committed by its own subjects, the executive agencies
enforce these laws, and the judiciary tries and sentences
the criminals in accordance with these laws.
Although penologists, throughout history, have not
stopped debating on the causes of criminal behavior and
the purposes of criminal punishment, our criminal laws
have been perceived as relatively stable and functional
since the enforcement of the Revised Penal Code on
January 1, 1932, this notwithstanding occasional
opposition to the death penalty pro-
694

visions therein. The Revised Penal Code, as it was

originally promulgated, provided for the death penalty in
specified crimes under specific circumstances. As early as
1886, though, capital punishment had entered our legal
system through the old Penal Code, which was a modified
version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the
form of a constitutional question of whether or not the
death penalty is a cruel, unjust, excessive or unusual
punishment in violation of the constitutional proscription
against cruel and unusual punishments. We unchangingly
answered this question in the 8
negative in the9 cases of
Harden v.10 Director of Prisons,
11
People v. Limaco, People
12
v.
Camano, People v. Puda and People v. Marcos. In
Harden, we ruled:
„The penalty complained of is neither cruel, unjust nor excessive. In

Ex-parte Kemmler, 136 U.S. 436, the United States Supreme Court
said that Âpunishments are cruel when they involve torture or a
lingering death, but the punishment of death is not cruel, within
the meaning of that word as used in the constitution. It implies
there something inhuman and barbarous, something more than the
13
mere extinguishment of life.Ê „
Consequently, we have time and again emphasized that our
courts are not the fora for a protracted debate on the

morality or propriety of the death sentence where the law
itself provides therefor in specific and well-defined criminal
acts. Thus we had ruled in the 1951 case of Limaco that:
„x x x there are quite a number of people who honestly believe that

the supreme penalty is either morally wrong or unwise or
ineffective. However, as long as that penalty remains in the statute
________________
8 81 Phil. 741 [1948].

9 88 Phil. 36 [1951].
10 115 SCRA 688 [1982].
11 133 SCRA 1 [1984].
12 147 SCRA 204 [1987].
13 81 Phil. 741, 747 [1948].
695
VOL. 267, FEBRUARY 7, 1997 695

books, and as long as our criminal law provides for its imposition in
certain cases, it is the duty of judicial officers to respect and apply
14
the law regardless of their private opinions."
and this we15 have reiterated in the 1995 case of People v.

Veneracion.
Under the Revised Penal Code, death is the penalty for
the crimes of treason, correspondence with the enemy
during times of war, qualified piracy, parricide, murder,
infanticide, kidnapping, rape with homicide or with the use
of deadly weapon or by two or more persons resulting in
insanity, robbery with homicide, and arson resulting in
death. The list of capital offenses lengthened as the
legislature responded to the emergencies of the times. In
1941, Commonwealth Act (C.A.) No. 616 added espionage
to the list. In the 1950s, at the height of the Huk rebellion,
the government enacted Republic Act (R.A.) No. 1700,
otherwise known as the Anti-Subversion Law, which
carried the death penalty for leaders of the rebellion. From
1971 to 1972, more capital offenses were created by more
laws, among them, the Anti-Hijacking Law, the Dangerous
Drugs Act, and the Anti-Carnapping Law. During martial
law, Presidential Decree (P.D.) No. 1866 was enacted
penalizing with death, among others, crimes involving

homicide committed with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled
the Marcos regime and led to the nullification of the 1973
Constitution, a Constitutional Commission was convened
following appointments thereto by Corazon Aquino who
was catapulted to power by the people.
Tasked with formulating a charter that echoes the new
found freedom of a rejuvenated people, the Constitutional
Commissioners grouped themselves into working
committees among which is the Bill of Rights Committee
with Jose B. Laurel, Jr. as Chairman and Father Joaquin
G. Bernas, S.J., as Vice-Chairman.
_______________
14 88 Phil. 36, 43 [1951].

15 249 SCRA 246, 253 [1995].
696

On July 17, 1986, Father Bernas presented the committee

draft of the proposed bill of rights to the rest of the
commission. What is now Article III, Section 19(1) of the
1987 Constitution was first denominated as Section 22 and
was originally worded as follows:
„Excessive fines shall not be imposed, nor cruel, degrading or

inhuman punishment, or the death penalty inflicted. Death penalty
already imposed shall be commuted to reclusion perpetua.‰
Father Bernas explained that the foregoing provision was

the result of a consensus among the members of the Bill of
Rights Committee that the death penalty should be
abolished. Having agreed to abolish the death penalty, they
proceeded to deliberate on how the abolition was to be done
·whether the abolition should be done by the Constitution
or by the legislature·and the majority voted for a
constitutional abolition of the death penalty. Father Bernas
explained:
„x x x [T]here was a division in the Committee not on whether the

death penalty should be abolished or not, but rather on whether the
abolition should be done by the Constitution·in which case it

cannot be restored by the legislature·or left to the legislature. The
majority voted for the constitutional abolition of the death penalty.
And the reason is that capital punishment is inhuman for the
convict and his family who are traumatized by the waiting, even if
it is never carried out. There is no evidence that the death penalty
deterred deadly criminals, hence, life should not be destroyed just
in the hope that other lives might be saved. Assuming mastery over
the life of another man is 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 from reviewing it. Human life
is more valuable than an institution intended precisely to serve
human life. So, basically, this is the summary of the reasons which
were presented in support of the constitutional abolition of the
16
death penalty."
The original wording of Article III, Section 19(1), however,

did not survive the debate that it instigated. Commissioner
________________
16 Record, CONCOM, July 17, 1986, Vol. I, p. 676.
697
VOL. 267, FEBRUARY 7, 1997 697

Napoleon G. Rama first pointed out that „never in our

history has there been a higher incidence of crime‰ and 17
that „criminality was at its zenith during the last decade."
Ultimately, the dissent defined itself to an unwillingness to
absolutely excise the death penalty from our legal system
and leave society helpless in the face of a future upsurge of
crimes or other similar emergencies. As Commissioner
Rustico F. de los Reyes, Jr. suggested, Âalthough we abolish
the death penalty in the Constitution, we should 18
afford
some amount of flexibility to future legislation," and his
concern was amplified by the interpellatory remarks of
Commissioner Lugum L. Uka, Commissioner and now
Associate Justice Florenz Regalado, Commissioner
Crispino M. de Castro, Commissioner Ambrosio B. Padilla,
Commissioner Christian Monsod, Commissioner Francisco
A. Rodrigo, and Commissioner Ricardo Romulo.
Commissioner Padilla put it succinctly in the following
exchange with Commissioner Teodoro C. Bacani:
„BISHOP BACANI. x x x At present, they explicitly make it clear

that the church has never condemned the right of the state to inflict
capital punishment.
MR. PADILLA. x x x So it is granted that the state is not
deprived of the right even from a moral standpoint of imposing or
prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the
Catholic point of view, that right of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has
the delegated authority from the Creator to impose the death
penalty under certain circumstances.
BISHOP BACANI. The state has the delegation from God for it
to do what is needed for the sake of the common good, but the issue
at stake is whether or not under the present circumstances that will
be for the common good.
MR. PADILLA. But the delegated power of the state cannot be
denied.
_______________
17 Id., p. 678.
18 Id., p. 680.
698

BISHOP BACANI. Yes, the state can be delegated by God at a

particular stage in history, but it is not clear whether or not that
delegation is forever under all circumstances.
MR. PADILLA. So this matter should be left to the legislature to
determine, under certain specified conditions or circumstances,
whether the retention of the death penalty or its abolition would be
for the common good. I do not believe this Commission can a priori,
and as was remarked within a few days or even a month, determine
a positive provision in the Constitution that would prohibit even the
legislature to prescribe the death penalty for the most heinous
crimes, the most grievous offenses attended by many qualifying and
19
aggravating circumstances."
What followed, thus, were proposed amendments to the

beleaguered provision. The move to add the phrase, „unless
for compelling reasons involving heinous crimes, the

national assembly provides for the death penalty,‰ came
from Commissioners Monsod, Jose E. Suarez and de los
Reyes. Commissioner Rodrigo, however, expressed
reservations even as regards the proposed amendment. He
said:
„x x x [T]he issue here is whether or not we should provide this

matter in the Constitution or leave it to the discretion of our
legislature. Arguments pro and con have been given x x x. But my
stand is, we should leave this to the discretion of the legislature.
The proposed amendment is halfhearted. It is awkward because
we will, in effect, repeal by our Constitution a piece of legislation
and after repealing this piece of legislation, tell the legislature that
we have repealed the law and that the legislature can go ahead and
enact it again. I think this is not worthy of a constitutional body
like ours. If we will leave the matter of the death penalty to the
legislature, let us leave it completely to the discretion of the
legislature, but let us not have this half-baked provision. We have
many provisions in the Revised Penal Code imposing the death
penalty. We will now revoke or repeal these pieces of legislation by
means of the Constitution, but at the same time say that it is up to
the legislature to impose this again.
x x x The temper and condition of the times change x x x and so
we, I think we should leave this matter to the legislature to enact
________________
19 Record, CONCOM, July 17, 1986, Vol. I, p. 712.
699
VOL. 267, FEBRUARY 7, 1997 699

statutes depending on the changing needs of the times. Let us

entrust this completely to the legislature composed of
representatives elected by the people.
I do not say that we are not competent. But we have to admit the
fact that we are not elected by the people and if we are going to
entrust this to the legislature, let us not be half-baked nor
halfhearted about it. Let us entrust it to the legislature 100
20
percent.
Nonetheless, the proposed amendment was approved with

twenty-three (23) commissioners voting in favor of the
amendment and twelve (12) voting against it, followed by

more revisions, hence the present wording of Article III,
Section 19(1) of the 1987 Constitution in the following
tenor:
„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.‰
The implications of the foregoing provision on the

effectivity of the death penalty provisions in the Revised
Penal Code and certain special criminal laws and the state
of the scale of penalties thereunder, were tremendous.
The immediate problem pertained to the applicable
penalty for
21
what used to be capital crimes. In People v.
Gavarra, we stated that „in view of the abolition of the
death penalty under Section 19, Article III of the 1987
Constitution, the penalty that may be imposed for murder
is reclusion
22
temporal in its maximum period to reclusion
perpetua" thereby eliminating death as the original
maximum period. The constitutional abolition of the death
penalty, it seemed, limited the penalty for murder to only
the remaining periods, to wit, the minimum and the
medium, which we then, in People v.
_______________
20 Id., p. 744
21 155 SCRA 327 [1987].
22 Id., p. 335.
700

23 24 25
Masangkay, People v. Atencio and People v. Intino
divided into three new periods, to wit, the lower half of
reclusion temporal maximum as the minimum; the upper
half of reclusion temporal maximum as the medium; and
reclusion perpetua as the maximum, in keeping with the
three-grade scheme26 under the Revised Penal Code. In
People v. Muñoz, however, we reconsidered these
aforecited cases and after extended discussion, we

concluded that the doctrine announced therein did not
reflect the intention of the framers. The crux of the issue
was whether or not Article III, Section 19(1) absolutely
abolished the death penalty, for if it did, then, the
aforementioned new three-grade penalty should replace the
old one where the death penalty constituted the maximum
period. But if no total abolition can be read from said
constitutional provision and the death penalty is only
suspended, it cannot as yet be negated by the institution of
a new three-grade penalty premised on the total
inexistence of the death penalty in our statute books. We
thus ruled in Muñoz:
„The advocates of the Masangkay ruling argue that the

Constitution abolished the death penalty and thereby limited the
penalty for murder to the remaining periods, to wit, the minimum
and the medium. These should now be divided into three new
periods in keeping with the three-grade scheme intended by the
legislature. Those who disagree feel that Article III, Section 19(1)
merely prohibits the imposition of the death penalty and has not, by
reducing it to reclusion perpetua, also correspondingly reduced the
remaining penalties. These should be maintained intact.
A reading of Section 19(1) of Article III will readily show that
there is really nothing therein which expressly declares the
abolition of the death penalty. The provision merely says that the
death penalty shall not be imposed unless for compelling reasons
involving heinous crimes the Congress hereafter provides for it and,
if already
________________
23 155 SCRA 113 [1987].

24 156 SCRA 242 [1987].
25 165 SCRA 637 [1988].
26 170 SCRA 107 [1989].
701
VOL. 267, FEBRUARY 7, 1997 701

imposed, shall be reduced to reclusion perpetua. The language,

27
while rather awkward, is still plain enough."
Nothing is more defining of the true content of Article III,
Section 19(1) of the 1987 Constitution than the form in

which the legislature took the initiative in re-imposing the
death penalty.
The Senate never doubted its power as vested in it by
the Constitution, to enact legislation re-imposing the death
penalty for compelling reasons involving heinous crimes.
Pursuant to this constitutional mandate, the Senate
proceeded to a two-step process consisting of: first, the
decision, as a matter of policy, to re-impose the death
penalty or not; and second, the vote to pass on the third
reading the bill re-imposing the death penalty for
compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange
of arguments for and against capital punishment, the
Members of the Senate voted on the policy issue of death
penalty. The vote was explained, thus:
„SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body

suspended the Rules of the Senate. Thereafter, upon motion of
Senator Romulo, there being no objection, the Chair directed that a
nominal voting be conducted on the policy issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate

would vote on this policy question, Senator Romulo stated that a
vote of Yes would mean a vote in favor of death as a penalty to be
reincorporated in the scale of penalties as provided in the Revised
Penal Code, and a vote of No would be a vote against the
reincorporation of death penalty in the scale of penalties in the
Revised Penal Code.
________________
27 Id., p. 121.
702

INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body
would first decide the question whether or not death penalty should
be reimposed, and thereafter, a seven-man committee would be
formed to draft the compromise bill in accordance with the result of
the voting. If the Body decides in favor of the death penalty, the
Chair said that the committee would specify the crimes on which
death penalty would be imposed. It affirmed that a vote of Yes in
the nominal voting would mean a vote in favor of death penalty on
at least one crime, and that certain refinements on how the penalty
would be imposed would be left to the discretion of the seven-man
committee.
xxx
INQUIRY OF SENATOR TAÑADA
In reply to Senator TañadaÊs query, the Chair affirmed that even

if a senator would vote ÂyesÊ on the basic policy issue, he could still
vote ÂnoÊ on the imposition of the death penalty on a particular
crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the

basic policy issue of whether or not the death penalty would be
included in the scale of penalties found in Article 27 of the Revised
Penal Code, so that if it is voted down, the Body would discontinue
discussing Senate Bill No. 891 pursuant to the Rules, but if
approved, a special committee, as agreed upon in the caucus, is
going to be appointed and whatever course it will take will depend
upon the mandate given to it by the Body later on.
The Chair affirmed Senator TolentinoÊs observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not
death as a penalty will be reincorporated in the scale of penalties
provided by the Revised Penal Code. However, he pointed out that if
the Body decides in favor of death penalty, the Body would still have
to address two issues: 1) Is the crime for which the death penalty is
supposed to be imposed heinous pursuant to the constitutional
mandate? 2) And, if so, is there a compelling reason to impose the
703
VOL. 267, FEBRUARY 7, 1997 703

death penalty for it? The death penalty, he stressed, cannot be

28
imposed simply because the crime is heinous. „
With seventeen (17) affirmative votes and seven (7)

negative votes and no abstention, the Chair declared that
the Senate has voted to re-incorporate death as a penalty
in the scale of penalties as provided in the Revised Penal
Code. A nineperson committee was subsequently created to
draft the compromise bill pursuant to said vote. The
mandate of the committee was to retain the death penalty,
while the main debate in the committee would be the
determination of the crime to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman
of the Special Committee on the Death Penalty, delivered
his Sponsorship Speech. He began with an explanation as
to why the Senate Bill No. 891 re-imposes the death
penalty by amending the Revised Penal Code and other
special penal laws and includes provisions that do not
define or punish crimes but serve purposes allied to the re-
imposition of the death penalty. Senator Tolentino stated:
„x x x [W]hen the Senate approved the policy of reimposing the

death penalty on heinous crimes and delegated to the Special
Committee the work of drafting a bill, a compromise bill that would
be the subject for future deliberations of this Body, the Committee
had to consider that the death penalty was imposed originally in
the Revised Penal Code.
So, when the Constitution was approved in order to do away with
the death penalty, unless Congress should, for compelling reasons
reimpose that penalty on heinous crimes, it was obvious that it was
the Revised Penal Code that was affected by that provision of the
Constitution. The death penalty, as provided in the Revised Penal
Code, would be considered as having been repealed·all provisions
on the death penalty would be considered as having been repealed
by the Constitution, until Congress should, for compelling reasons,
reimpose such penalty on heinous crimes. Therefore, it was not only
one article but many articles of the Revised Penal Code that were
actually affected by the Constitution.
________________
28 Journal, Senate, February 15, 1993, Vol. 2, p. 1246.
704
And it is in consideration of this consequence of the constitutional

provision that our Special Committee had to consider the Revised
Penal Code itself in making this compromise bill or text of the bill.
That is why, in the proposed draft now under consideration which
we are sponsoring, the specific provisions of the Revised Penal Code
are actually either reenacted or amended or both. Because by the
effect of the Constitution, some provisions were totally repealed,
and they had to be reenacted so that the provisions could be
retained. And some of them had to be amended because the
29
Committee thought that amendments were proper."
In response to a query by Senator Gloria Macapagal-Arroyo

as to whether or not it would have been better if the Senate
were to enact a special law which merely defined and
imposed the death penalty for heinous crimes, Senator
Tolentino explicated, thus:
„x x x [T]hat may be a way presenting the bill. But we must bear in

mind that the death penalty is imposed in the Revised Penal Code.
Therefore, when the Constitution abolished the death penalty, it
actually was amending the Revised Penal Code to such an extent
that the Constitution provides that where the death penalty has
already been imposed but not yet carried out, then the penalty shall
be reclusion perpetua, that is the penalty in the Revised Penal
Code. So we thought that it would be best to just amend the
provisions of the Revised Penal Code, restoring the death penalty
for some crimes that may be considered as heinous. That is why the
bill is in this form amending the provisions of the Revised Penal
Code.
Of course, if some people want to present a special bill . . . the
whole trouble is, when a special bill is presented and we want to
punish in the special bill the case of murder, for instance, we will
have to reproduce the provisions of the Revised Penal Code on
murder in order to define the crime for which the death penalty
shall be imposed. Or if we want to impose the death penalty in the
case of kidnapping which is punished in the Revised Penal Code, we
will do the same·merely reproduce. Why will we do that? So we
just followed the simpler method of keeping the definition of the
crime as the same and merely adding some aggravating
circumstances and
________________
29 Record, Senate, March 17, 1993, Vol. IV, p. 77.
705
VOL. 267, FEBRUARY 7, 1997 705

reimposing the death penalty in these offenses originally punished

30
in the Revised Penal Code."
From March 17, 1993, when the death penalty bill was
presented for discussion until August 16, 1993, the
Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator
Lina who kept prodding the sponsors of the bill to state the
compelling reason for each and every crime for which the
supreme penalty of death was sought. Zeroing in on the
statement in the preamble of the death penalty bill that the
same is warranted in the face of „the alarming upsurge of
[heinous] crimes,‰ Senator Lina demanded for solid
statistics showing that in the case of each and every crime
in the death penalty bill, there was a significantly higher
incidence of each crime after the suspension of the death
penalty on February 2, 1987 when the 1987 Constitution
was ratified by the majority
31
of the Filipino people, than
before such ratification. Inasmuch as the re-impositionists
could not satisfy the abolitionists with sufficient statistical
data for the latter to accept the alarming upsurge of
heinous crimes as a compelling reason justifying the re-
imposition of the death penalty, Senator Lina concluded
that there were, in fact, no compelling reasons therefor. In
the alternative, Senator Lina argued that the compelling
reason required by the constitution was that „the State has
done everything in its command so that it can be justified
32
to use an inhuman punishment called death penalty." The
problem, Senator Lina emphasized, was that even the re-
impositionists admit that there were still numerous
reforms in the criminal justice system that may and must
be put in place, and so clearly, the recourse to the
enactment of a death penalty bill was not in the nature of a
last resort, hence, unconstitutional in the absence of
compelling reasons. As an initial reaction to Senator LinaÊs
contentions, Senator Tolen-
_______________
30 Id., May 18, 1993, Vol. IV, p. 596.
31 Record, Senate, March 18, 1993, Vol. IV, pp. 106–112.

32 Journal, February 10 & 11, 1993, Vol. II, p. 1223.
706

tino explained that the statement in the preamble is a

general one and refers to all the crimes covered by the bill
and not to specific crimes. He added that one crime may
not have the same degree of increase in incidence as the
other crimes and that the public demand33 to impose the
death penalty is enough compelling reason.
Equally fit to the task was Senator Wigberto Tañada to
whom the battle lines were clearly drawn. He put to issue
two things: first, the definition of „heinous crimes‰ as
provided for in the death penalty bill; and second, the
statement of compelling reasons for each and every capital
crime. His interpellation of Senator Tolentino clearly
showed his objections to the bill:
„Senator Tañada. x x x But what would make crimes heinous, Mr.

President? Are crimes heinous by their nature or elements as they
are described in the bill or are crimes heinous because they are
punished by death, as bribery and malversation are proposed to be
punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr.
President, but that is not supposed to be the exclusive criterion. The
nature of the offense is the most important element in considering
it heinous but, at the same time, we should consider the relation of
the offense to society in order to have a complete idea of the heinous
nature of these offenses. In the case of malversation or bribery, for
instance, these offenses by themselves connected with the effect
upon society and the government have made them fall under the
classification of heinous crimes. The compelling reason for imposing
the death penalty is when the offenses of malversation and bribery
becomes so grave and so serious as indicated in the substitute bill
itself, then there is a compelling reason for the death penalty.
Senator Tañada. With respect to the compelling reasons, Mr.
President, does the Gentleman believe that these compelling
reasons, which would call for the reimposition of the death penalty,
should be separately, distinctly and clearly stated for each crime so
that it will be very clear to one and all that not only are these
crimes
________________
33 Journal, Senate, March 22, 1993, Vol. II, pp. 1574–1575.
707
VOL. 267, FEBRUARY 7, 1997 707

heinous but also one can see the compelling reasons for the
reimposition of the death penalty therefor?
Senator Tolentino. Mr. President, that matter was actually
considered by the Committee. But the decision of the Committee
was to avoid stating the compelling reason for each and every
offense that is included in the substitute measure. That is why in
the preamble, general statements were made to show these
compelling reasons. And that, we believe, included in the bill, when
converted into law, would be sufficient notice as to what were
considered compelling reasons by the Congress, in providing the
death penalty for these different offenses.
If a matter like this is questioned before the Supreme Court, I
would suppose that with the preamble already in general terms, the
Supreme Court would feel that it was the sense of Congress that
this preamble would be applicable to each and every offense
described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling
reasons for each and every offense.
Senator Tañada. Mr. President, I am thinking about the
constitutional limitations upon the power of Congress to enact
criminal legislation, especially the provisions on the Bill of Rights,
particularly the one which says that no person shall be held to
answer for a criminal offense without due process of law.
Can we not say that under this provision, it is required that the
compelling reasons be so stated in the bill so that the bill, when it
becomes a law, will clearly define the acts and the omissions
punished as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as
substantive law, this is sufficient. The question of whether there is
due process will more or less be a matter of procedure in the
compliance with the requirements of the Constitution with respect
to due process itself which is a separate matter from the
substantive law as to the definition and penalty for crimes.
Senator Tañada. Under the Constitution, Mr. President, it
appears that the reimposition of the death penalty is subject to
three conditions and these are:
1. Congress should so provide such reimposition of the death

penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
708

Under these provisions of the Constitution, paragraph 1, Section 13,

does the distinguished Gentleman not feel that Congress is bound
to state clearly the compelling reasons for the reimposition of the
death penalty for each crime, as well as the elements that make
each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of opinion
already. I believe that whether we state the compelling reasons or
not, whether we state why a certain offense is heinous, is not very
important. If the question is raised in the Supreme Court, it is not
what we say in the bill that will be controlling but what the
Supreme Court will feel as a sufficient compelling reason or as to
the heinous nature whether the crime is heinous or not. The
accused can certainly raise the matter of constitutionality but it will
not go into the matter of due process. It will go into the very power
of Congress to enact a bill imposing the death penalty. So that
34
would be entirely separate from the matter of due process."
Senator Francisco Tatad, on his part, pointed out that the

death penalty bill violated our international commitment
in support of the worldwide abolition of capital
punishment, the Philippines being a signatory to the
International Covenant on Civil and Political Rights and
its Second Optional Protocol. Senator Ernesto Herrera
clarified, however, that in the United Nations, subject
matters are submitted to the different committees which
vote on them for consideration in the plenary session. He
stressed that unless approved in the plenary session, a
declaration would have no binding effect on signatory
countries. In this respect, the Philippines cannot be
deemed irrevocably bound by said covenant and protocol
considering that35these agreements have reached only the
committee level.
After the protracted debate, the Members of the Senate
voted on Senate Bill No. 891 on third reading. With
seventeen (17) affirmative votes, four (4) negative votes,

and one abstention, the death penalty bill was approved on
third reading on August 16, 1993.
_______________
34 Record, Senate, May 11, 1993, Vol. IV, pp. 500–501.

35 Journal, Senate, February 2, 1993, Vol. II, p. 1161.
709
VOL. 267, FEBRUARY 7, 1997 709

The SenateÊs vote to pass Senate Bill No. 891 on third

reading on August 16, 1993 was a vindication of the House
of Representatives. The House had, in the Eight Congress,
earlier approved on third reading House Bill No. 295 on the
restoration of the death penalty for certain heinous crimes.
The House was in effect rebuffed by the Senate when the
Senate killed House Bill No. 295 along with other bills
coming from the House. House Bill No. 295 was resurrected
during the Ninth Congress in the form of House Bill No. 62
which was introduced by twenty one (21) Members of the
House of Representatives on October 27, 1992. House Bill
No. 62 was a merger of House Bill Nos. 125, 187, 411, 764,
506; 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632
authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R.
Sanchez of Rizal ably essayed the constitutional vesting in
Congress of the power to re-impose the death penalty for
compelling reasons invoking heinous crimes as well as the
nature of this constitutional pre-requisite to the exercise of
such power.
„Mr. Speaker, in Article III, Section 19(1) of Constitution reads, as I

quote:
ÂNeither shall death penalty be imposed, unless, for compelling reasons

involving heinous crimes, the Congress shall thereafter provide for it. . .'
The phrase Âunless, for compelling reasons involving heinous

crimes, the Congress shall thereafter provide for it was introduced
as an amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable. By this
amendment, the death penalty was not completely abolished by the
1987 Constitution. Rather, it merely suspended the death penalty

and gave Congress the discretion to review it at the propitious time.
Arguing for the inclusion of said amendment in the fine
provision, Comm. Ricardo Romulo said, and I quote:
„The people should have the final say on the subject, because, at some
future time, the people might want to restore death penalty through
initiative and referendum.
710

Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is

entirely possible in the future that circumstances may arise which we
should not preclude today.
xxx xxx xxx

I believe that [there] are enough compelling reasons that merit
the reimposition of the capital punishment. The violent manner and
the viciousness in which crimes are now committed with alarming
regularity, show very clearly a patent disregard of the law and a
mockery of public peace and order.
In the public gallery section today are the relatives of the victims
of heinous crimes·the Hultmans, the Maguans, the Vizcondes, the
Castañoses, and many more, and they are all crying for justice. We
ought to listen to them because their lives, their hopes, their
dreams, their future have fallen asunder by the cruel and vicious
criminality of a few who put their selfish interest above that of
society.
Heinous crime is an act or series of acts which, by the flagrantly
violent manner in which the same was committed or by the reason
of its inherent viciousness, shows a patent disregard and mockery of
the law, public peace and order, or public morals. It is an offense
whose essential and inherent viciousness and atrocity are
repugnant and outrageous to a civilized society and hence, shock
the moral self of a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her
two lovely daughters, will stand in the peopleÊs memory for many
long years as the epitome of viciousness and atrocity that are
repugnant to civilized society.
The senseless murder of Eldon Maguan, an up-and-coming
young business executive, was and still is an outrage that shocks

the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16
year-old high school student who dreamt of becoming a commercial
model someday, at the hands of a crazed man was so repulsive, so
brutal that it offends the sensibilities of Christians and
nonChristians alike.
The cold-blooded double murder of Cochise Bernabe and Beebom
Castaños, the lovely and promising couple from the University
711
VOL. 267, FEBRUARY 7, 1997 711

of the Philippines, is eternally lodged in the recesses of our minds

and still makes our stomach turn in utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if no radical action
is taken by this body in restoring death penalty as a positive
response to the overwhelming clamor of the people, then, as
Professor Esteban Bautista of the Philippine Law Center said, and I
quote:
When people begin to believe that organized society is unwilling or

unable to impose upon criminal offenders the punishment they deserve,
there are sown the seeds of anarchy·of self-help, of vigilante justice and
lynch law. The people will take the law upon their hands and exact
vengeance in the nature of personal vendetta.Ê
It is for this reason, Mr. Speaker, that I stand here and support
House Bill No. 62.
As duly elected Representatives of our people, collectively, we
ought to listen to our constituents and heed their plea·a plea for
life, liberty and pursuit of their happiness under a regime of justice
and democracy, and without threat that their loved ones will be
kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could
rely on for justice. A law that will exact retribution for the victims.
A law that will deter future animalistic behavior of the criminal
who take their selfish interest over and above that of society. A law
that will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of
36
all that we hold dear and sacred, let us restore the death penalty."
A studious comparison of the legislative proceedings in the
Senate and in the House of Representatives reveals that,

while both Chambers were not wanting of oppositors to the
death penalty, the Lower House seemed less quarrelsome
about the form of the death penalty bill as a special law
specifying certain heinous crimes without regard to the
provisions of the Revised Penal Code and more unified in
the perception
________________
36 Record, House of Representatives, Vol. III, November 9, 1992, pp.

417–418.
712

of what crimes are heinous and that the fact of their very
heinousness involves the compulsion and the imperative to
suppress, if not completely eradicate, their occurrence. Be
it the foregoing general statement of Representative
Sanchez on the following details of the nature of the
heinous crimes enumerated in House Bill No. 62 by
Representative Miguel L. Romero of Negros Oriental, there
was clearly, among the hundred or so re-impositionists in
the Lower House, no doubt as to their cause:
„My friends, this bill provides for the imposition of the death
penalty not only for the importation, manufacture and sale of
dangerous drugs, but also for other heinous crimes such as treason;
parricide; murder; kidnapping; robbery; rape as defined by the
Revised Penal Code with or without additionally defined
circumstances; plunder, as defined in R.A. 7080; piracy, as defined
under Section 2 of PD 532; carnapping, as defined in Section 2 of RA
6539, when the owner, driver or occupant is killed; hijacking, as
defined in x x x RA 6235; and arson resulting in the death of any
occupants.
All these crimes have a common denominator which qualifies
them to the level of heinous crimes. A heinous crime is one which,
by reason of its inherent or manifest wickedness, viciousness,
atrocity or perversity, is repugnant and outrageous to the common
standards of decency and morality in a just and civilized society.
For instance, the crime of treason is defined as a breach of
allegiance to a government, committed by a person who owes
allegiance to it (U.S. v. Abad, 1 Phil. 437). By the ÂallegianceÊ is

meant the obligation of fidelity and obedience which individuals
owe to the government under which they live or to their sovereign
in return for the protection which they receive (52 Am Jur 797).
In kidnapping, the thought alone of oneÊs loved one being held
against his or her own will in some unidentified x x x house by a
group of scoundrels who are strangers is enough to terrify and send
shivers of fear through the spine of any person, even scoundrels
themselves.
In robbery accompanied by rape, intentional mutilation or arson,
what is being punished by death is the fact that the perpetrator, at
the time of the commission of the crime, thinks nothing of the other
crime he commits and sees it merely as a form of selfamusement.
When a homicide is committed by reason of the rob-
713
VOL. 267, FEBRUARY 7, 1997 713

bery, the culprits are perceived as willing to take human life in

exchange for money or other personal property.
In the crime of rape, not only do we speak of the pain and agony
of the parents over the personal shock and suffering of their child
but the stigma of the traumatic and degrading incident which has
shattered the victimÊs life and permanently destroyed her
reputation, not to mention the ordeal of having to undergo the
shameful experience of police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for
the universal hostility of the perpetrators against their victims who
are passengers and complement of the vessel, and because of the
fact that, in the high seas, no one may be expected to be able to
come to the rescue of the helpless victims. For the same reason, Mr.
Speaker, the crime of air piracy is punished due to the evil motive of
the hijackers in making unreasonable demands upon the
sovereignty of an entire nation or nations, coupled with the
37
attendant circumstance of subjecting the passengers to terrorism."
The debate on House Bill No. 62 lasted from October 27,

1992 to February 11, 1993. On February 11, 1993, the
Members of the House of Representatives overwhelmingly
approved the death penalty bill on second reading.
On February 23, 1993, after explaining their votes, the
Members of the House of Representatives cast their vote on
House Bill No. 62 when it was up for consideration on third
38
reading. The results were 123 votes in favor, 26 votes
against, and 2 abstentions.
After the approval on third reading of House Bill No. 62
on February 23, 1993 and of Senate Bill No. 891 on August
16, 1993, the Bicameral Conference Committee convened to
incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659,
entitled, „An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised
Penal Code,
________________
37 Record, House of Representatives, Vol. III, November 9, 1992, pp.

419–420.
38 Record, House of Representatives, Vol. V, February 23, 1993, p. 98.
714

as Amended, Other Special

39
Penal Laws, and for Other
Purposes,‰ took effect.
Between December 31, 1993, when R.A. No. 7659 took
effect, and the present time, criminal offenders have been
prosecuted under said law, and one of them, herein
accusedappellant, has been, pursuant to said law, meted
out the supreme penalty of death for raping his ten-year
old daughter. Upon his conviction, his case was elevated to
us on automatic review. On June 25, 1996, we affirmed his
conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this
courtÊs affirmation of his death sentence and raises for the
first time the issue of the constitutionality of R.A. 7659. His
thesis is two-fold: (1) that the death penalty law is
unconstitutional per se for having been enacted in the
absence of compelling reasons therefor, and (2) that the
death penalty for rape is a cruel, excessive and inhuman
punishment in violation of the constitutional proscription
against punishment of such nature.
We reject accused-appellantÊs proposition.
Three justices interposed their dissent hereto, agreeing
with accused-appellantÊs view that Congress enacted R.A.
No. 7659 without complying with the twin requirements of
compelling reasons and heinous crimes.

At this juncture, the detailed events leading to the
enactment of R.A. No. 7659 as unfurled in the beginning of
this disquisition, necessarily provide the context for the
following analysis.
Article III, Section 19(1) of the 1987 Constitution plainly
vests in Congress the power to re-impose the death penalty
„for compelling reasons involving heinous crimes.‰ This
power is not subsumed in the plenary legislative power of
Congress, for it is subject to a clear showing of „compelling
reasons involving heinous crimes.‰
________________
39 People v. Simon, 234 SCRA 555 [1994]; People v. Timple, 237 SCRA
52 [1994].
715
VOL. 267, FEBRUARY 7, 1997 715

The constitutional exercise of this limited power to

reimpose the death penalty entails: (1) that Congress
define or describe what is meant by heinous crimes; (2) that
Congress specify and penalize by death, only crimes that
qualify as heinous in accordance with the definition or
description set in the death penalty bill and/or designate
crimes punishable by reclusion perpetua to death in which
latter case, death can only be imposed upon the attendance
of circumstances duly proven in court that characterize the
crime to be heinous in accordance with the definition or
description set in the death penalty bill; and (3) that
Congress, in enacting this death penalty bill be singularly
motivated by „compelling reasons involving heinous
crimes.‰
In the second whereas clause of the preamble of R.A. No.
7659, we find the definition or description of heinous
crimes. Said clause provides that:
„x x x the crimes punishable by death under this Act are heinous for
being grievous, odious and hateful offenses and which, by reason of
their inherent or manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered
society.‰
Justice Santiago Kapunan,

40
in his dissenting opinion in
People v. Alicando, traced the etymological root of the
word „heinous‰ to the Early SpartansÊ word, „haineus,‰
meaning, hateful and abominable, which, in turn, was from
the Greek prefix „haton,‰ denoting acts so hatefully or
shockingly evil.
We find the foregoing definition or description to be a
sufficient criterion of what is to be considered a heinous
crime. This criterion is deliberately undetailed as to the
circumstances of the victim, the accused, place, time, the
manner of commission of crime, its proximate consequences
and effects on the victim as well as on society, to afford the
sentencing authority sufficient leeway to exercise his
discretion in imposing the appropriate penalty in cases
where R.A. No. 7659
_______________
40 251 SCRA 293 [1995].
716

imposes not a mandatory penalty of death but the more

flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill,
Senators Lina and Tañada grilled the sponsors of the bill as
regards what they perceived as a mere enumeration of
capital crimes without a specification of the elements that
make them heinous. They were oblivious to the fact that
there were two types of crimes in the death penalty bill:
first, there were crimes penalized by reclusion perpetua to
death; and second, there were crimes penalized by
mandatory capital punishment upon the attendance of
certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized
by reclusion perpetua to death:
(1) Treason (Sec. 2);

(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);

(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if
attended by any of the following four circumstances:
(a) the victim was detained for more than three
days; (b) it was committed simulating public
authority; (c) serious physical injuries were inflicted
on the victim or threats to kill him were made; and
(d) if the victim is a minor, except when the accused
is any of the parents, female or a public officer (Sec.
8);
(7) Robbery with homicide, rape or intentional
mutilation (Sec. 9);
(8) Destructive arson if what is burned is; (a) one or
more buildings or edifice; (b) a building where
people usually gather; (c) a train, ship or airplane
for public use; (d) a building or factory in the
service of public utilities; (e) a building for the
purpose of concealing or destroying evidence of a
crime; (f) an arsenal, fireworks factory, or
government museum; and (g) a storehouse or
factory of explosive materials located in an
inhabited place; or regardless of what is burned, if
the arson is perpetrated by two or more persons
(Sec. 10);
(9) Rape attended by any of the following
circumstances: (a) the rape is committed with a
deadly weapon; (b) the rape is commit
717
VOL. 267, FEBRUARY 7, 1997 717

People vs, Echegaray
ted by two or more persons; and (c) the rape is

attempted or frustrated and committed with
homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs (Sec. 13);
(12) Sale, administration, delivery, distribution, and
transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);

(15) Possession or use of prohibited drugs in certain
specified amounts (id.);
(16) Cultivation of plants which are sources of
prohibited drugs (id.);
(17) Importation of regulated drugs (Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery,
transportation, and distribution of regulated drugs
(id.);
(20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified
amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to
account dangerous drugs confiscated by the
arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter
(Sec. 19); and
(24) Carnapping where the owner, driver or occupant of
the carnapped motor vehicle is killed or raped (Sec.
20).
All the foregoing crimes are not capital crimes per se, the
uniform penalty for all of them being not mandatory death
but the flexible penalty of reclusion perpetua to death. In
other words, it is premature to demand for a specification
of the heinous elements in each of the foregoing crimes
because they are not anyway mandatorily penalized with
death. The elements that call for the imposition of the
supreme penalty of death in these crimes, would only be
relevant when the trial court, given the prerogative to
impose reclusion perpetua, instead actually imposes the
death penalty because it has, in appreciating the evidence
proferred before it, found the at-
718

tendance of certain circumstances in the manner by which

the crime was committed, or in the person of the accused on

his own or in relation to the victim, or in any other matter
of significance to the commission of the crime or its effects
on the victim or on society, which circumstances
characterize the criminal acts as grievous, odious, or
hateful, or inherently or manifestly wicked, vicious,
atrocious or perverse as to be repugnant and outrageous to
the common standards and norms of decency and morality
in a just, civilized and ordered society.
On the other hand, under R.A. No. 7659, the mandatory
penalty of death is imposed in the following crimes:
(1) Qualified bribery
„If any public officer is entrusted with law enforcement and be refrains
from arresting or prosecuting an offender who has committed a crime
punishable by reclusion perpetua and/or death in consideration of any
offer, promise, gift or present, he shall suffer the penalty for the offense
which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he
shall suffer the penalty of death.‰ (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting

in the death of the victim or the victim is raped, tortured or
subjected to dehumanizing acts
„The penalty shall be death where the kidnapping or detention was

committed for the purpose of ransom from the victim or any other person,
even if none of the circumstances above-mentioned were present in the
commission of the offense.
When the victim is killed or dies as a consequence of the detention or
is raped, or is subject to torture or dehumanizing acts, the maximum
penalty [of death] shall be imposed.‰ (Sec. 8)
(3) Destructive arson resulting in death
„If as a consequence of the commission of any of the acts penalized under

this Article, death results, the mandatory penalty of death shall be
imposed.‰ (Sec. 10)
719
VOL. 267, FEBRUARY 7, 1997 719

(4) Rape with the victim becoming insane, rape with homicide and
qualified rape
„When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
xxx
When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.
The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
2. when the victim is under the custody of the police or military
authorities.
3. when the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree of
consanguinity.
4. when the victim is a religious or a child below seven (7) years old.
5. when the offender knows that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
6. when committed by any member of the Armed Forces of the
Philippines or the Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation.‰ (Sec. 11)
(5) Sale, administration, delivery, distribution and transportation

of prohibited drugs where the victim is a minor or the victim
„Notwithstanding the provision of Section 20 of this Act to the contrary, if

the victim of the offense is a minor, or should a prohibited drug involved
in any offense under this Section be the proximate cause of the death of
victim thereof, the maximum penalty [of death] herein provided shall be
(6) Maintenance of den, dive, or resort for users of prohibited

drugs where the victim is a minor or the victim dies
720

„Notwithstanding the provisions of Section 20 of this Act to the contrary,

the maximum of the penalty [of death] shall be imposed in every case
where a prohibited drug is administered, delivered or sold to a minor

who is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the death of a
person using the same in such den, dive or resort, the maximum penalty
herein provided shall be imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary.‰ (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and

transportation of regulated drugs where the victim is a minor or the
victim dies

if the victim of the offense is a minor, or should a regulated drug involved
in any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty [of death] herein provided shall be
(8.) Maintenance of den, dive, or resort for users of regulated

drugs where the victim is a minor or the victim dies

the maximum penalty [of death] herein provided shall be imposed in
every case where a regulated drug is administered, delivered or sold to a
minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person
using the same in such den, dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary.‰ (Sec. 15)
(9) Drug offenses if convicted are government officials, employees

or officers including members of police agencies and armed forces
„The maximum penalties [of death] provided for in Sections 3, 4(1), 5(1),
6, 7, 8, 9, 11, 12 and 13 of Article II and Sections 14, 14-A, 14(1), 15-A(1),
16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be
imposed, if those found guilty of any of the same offenses are government
officials,
721
VOL. 267, FEBRUARY 7, 1997 721

employees or officers including members of police agencies and the

armed forces.‰ (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses
with the mandatory death penalty if convicted are government

officials, employees or officers
„Any such above government official, employee or officer who is found

guilty of ÂplantingÊ any dangerous drugs punished in Sections 3, 4, 7, 8, 9
and 13 of Article II and Sections 14, 14A, 15, and 16 of Article III (of the
Dangerous Drugs Act of 1972) in the person or in the immediate vicinity
of another as evidence to implicate the latter, shall suffer the same
penalty as therein provided.‰ (Sec. 19)
(11) In all the crimes in R.A. No. 7659 in their qualified form
„When in the commission of the crime, advantage was taken by the

offender of his public position, the penalty to be imposed shall be in its
maximum [of death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated crime
group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime.‰ (Sec. 23)
It is specifically against the foregoing capital crimes that

the test of heinousness must be squarely applied.
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable, either
because life was callously taken or the victim is treated like
an animal and utterly dehumanized as to completely
disrupt the normal course of his or her growth as a human
being. The right of a person is not only to live but to live a
quality life, and this means that the rest of society is
obligated to respect his or her individual personality, the
integrity and the sanctity of his or her own physical body,
and the value he or she puts in his or her own spiritual,
psychological, material and social preferences and needs.
Seen in this light, the capital crimes of kidnapping and
serious illegal detention for ransom
722

resulting in the death of the victim or the victim is raped,

tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving
minors or resulting in the death of the victim in the case of

other crimes; as well as murder, rape, parricide,
infanticide, kidnapping and serious illegal detention where
the victim is detained for more than three days or serious
physical injuries were inflicted on the victim or threats to
kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson,
and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by
reclusion perpetua to death, are clearly heinous by their
very nature.
There are crimes, however, in which the abomination
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-political and
economic context in which the state finds itself to be
struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and
impoverished the population, the Philippine Government
must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality
that so deeply entrenched itself in the structures of society
and the psyche of the populace. Terribly lacking the money
to provide even the most basic services to its people, any
form of misappropriation or misapplication of government
funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it
governs over. Viewed in this context, no less heinous are
the effects and repercussions of crimes like qualified
bribery, destructive arson resulting in death, and drug
offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to
cause further destruction and damage to society.
We have no doubt, therefore, that insofar as the element
of heinousness is concerned, R.A. No. 7659 has correctly
identified crimes warranting the mandatory penalty of
death, As to the other crimes in R.A. No. 7659 punished by
reclusion per-
723
VOL. 267, FEBRUARY 7, 1997 723

petua to death, they are admittingly no less abominable
than those mandatorily penalized by death. The proper

time to determine their heinousness in contemplation of
law, is when on automatic review, we are called to pass on a
death sentence involving crimes punishable by reclusion
perpetua to death under R.A. No. 7659, with the trial court
meting out the death sentence in exercise of judicial
discretion. This is not to say, however, that the aggravating
circumstances under the Revised Penal Code need be
additionally alleged as establishing the heinousness of the
crime for the trial court to validly impose the death penalty
in the crimes under R.A. No. 7659 which are punished with
the flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend
or repeal the provisions of the Revised Penal Code relating
to aggravating circumstances. Secondly, R.A. No. 7659,
while it specifies circumstances that generally qualify a
crime provided therein to be punished by the maximum
penalty of death, neither amends nor repeals the
aggravating circumstances under the Revised Penal Code.
Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when: (1)
aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the commission
of the crime which indubitably characterize the same as
heinous in contemplation of R.A. No. 7659 that justify the
imposition of death, albeit the imposable penalty is
reclusion perpetua to death. Without difficulty, we
understand the rationale for the guided discretion granted
in the trial court to recognize circumstances that
characterize the commission of the crime as heinous.
Certainly there is an infinity of circumstances that may
attend the commission of a crime to the same extent that
there is no telling the evil that man is capable of. The
legislature cannot and need not foresee and inscribe in law
each and every loathsome act man is capable of. It is
sufficient thus that R.A. No. 7659 provides the test and
yardstick for the determination of the legal situation war-
724

ranting the imposition of the supreme penalty of death.

Needless to say, we are not unaware of the ever existing
danger of abuse of discretion on the part of the trial court
in meting out the death sentence. Precisely to reduce to. nil
the possibility of executing an innocent man or one
criminal but not heinously criminal, R.A. No. 7659 is
replete with both procedural and substantive safeguards
that ensure only the correct application of the mandate of
R.A. No. 7659.
In the course of the congressional debates on the
constitutional requirement that the death penalty be re-
imposed for compelling reasons involving heinous crimes,
we note that the main objection to the death penalty bill
revolved around the persistent demand of the abolitionists
for a statement of the compelling reason in each and every
heinous crime and statistical proof that such compelling
reason actually exists.
We believe, however, that the elements of heinousness
and compulsion are inseparable and are, in fact,
interspersed with each other. Because the subject crimes
are either so revolting and debasing as to violate the most
minimum of the human standards of decency or its effects,
repercussions, implications and consequences so
destructive, destabilizing, debilitating, or aggravating in
the context of our socio-political and economic agenda as a
developing nation, these crimes must be frustrated,
curtailed and altogether eradicated. There can be no ifs or
buts in the face of evil, and we cannot afford to wait until
we rub elbows with it before grasping it by the ears and
thrashing it to its demission.
The abolitionists in congress insisted that all criminal
reforms first be pursued and implemented before the death
penalty be re-imposed in case such reforms prove
unsuccessful. They claimed Âthat the only compelling
reason contemplated of by the constitution is that nothing
else but the death penalty is left for the government to
resort to that could check the chaos and the destruction
that is being caused by unbridled criminality. Three of our
colleagues, are of the opinion that the compelling reason
required by the constitution is that there occurred a
dramatic and significant change in the sociocultural milieu
after the suspension of the death penalty on
725
VOL. 267, FEBRUARY 7, 1997 725

February 2, 1987 such as an unprecedented rise in the

incidence of criminality. Such are, however, interpretations
only of the phrase „compelling reasons‰ but not of the
conjunctive phrase „compelling reasons involving heinous
crimes.‰ The imposition of the requirement that there be a
rise in the incidence of criminality because of the
suspension of the death penalty, moreover, is an unfair and
misplaced demand, for what it amounts to, in fact, is a
requirement that the death penalty first proves itself to be
a truly deterrent factor in criminal behavior. If there was a
dramatically higher incidence of criminality during the
time that the death penalty was suspended, that would
have proven that the death penalty was indeed a deterrent
during the years before its suspension. Suffice it to say-that
the constitution in the first place did not require that the
death penalty be first proven to be a deterrent; what it
requires is that there be compelling reasons involving
heinous crimes.
Article III, Section 19(1) of the 1987 Constitution simply
states that Congress, for compelling reasons involving
heinous crimes, may re-impose the death penalty. Nothing
in the said provision imposes a requirement that for a
death penalty bill to be valid, a positive manifestation in
the form of a higher incidence of crime should first be
perceived and statistically proven following the suspension
of the death penalty. Neither does the said provision
require that the death penalty be resorted to as a last
recourse when all other criminal reforms have failed to
abate criminality in society. It is immaterial and irrelevant
that R.A. No. 7659 cites that there has been an „alarming
upsurge of such crimes,‰ for the same was never intended
by said law to be the yardstick to determine the existence
of compelling reasons involving heinous crimes. Fittingly,
thus, what R.A. No. 7659 states is that „the Congress, in
the interest of justice, public order and rule of law, and the
need to rationalize and harmonize the penal sanctions for
heinous crimes, finds compelling reasons to impose the
death penalty for said crimes.‰
We now proceed to answer accused-appellantÊs other
ground for attacking the constitutionality of R.A. No. 7659,
726

i.e., that the death penalty imposed in rape is violative of

the constitutional proscription against cruel, degrading or
inhuman punishment.
Accused-appellant first claims that the death penalty is
per se a cruel, degrading or inhuman punishment as ruled
by the United
41
States (U.S.) Supreme Court in Furman v.
Georgia. To state, however, that the U.S. Supreme Court,
in Furman, categorically ruled that the death penalty is a
cruel, degrading or inhuman punishment, is misleading
and inaccurate.
The issue in Furman was not so much death penalty
itself but the arbitrariness pervading the procedures by
which the death penalty was imposed on the accused by the
sentencing jury. Thus, the defense theory in Furman
centered not so much on the nature of the death penalty as
a criminal sanction but on the discrimination against the
black accused who is meted out the death penalty by a
white jury that is given the unconditional discretion to
determine whether or not to impose the death penalty. In
fact, the long road of the American abolitionist movement
leading to the landmark case of Furman was trekked by
American civil rights advocates zealously fighting against
racial discrimination. Thus, the U.S. Supreme Court stated
in Furman:
„We cannot say from facts disclosed in these records that these
defendants were sentenced to death because they were black. Yet
our task is not restricted to an effort to divine what motives
impelled these death penalties. Rather, we deal with a system of
law and of justice that leaves to the uncontrolled discretion of
judges or juries the determination whether defendants committing
these crimes should die x x x.
xxx
In a Nation committed to equal protection of the laws there is no
permissible ÂcasteÊ aspect of law enforcement. Yet we know that the
discretion of judges and juries in imposing the death penalty
enables the penalty to be selectively applied, feeding prejudices
against the accused if he is poor and despised x x x.
xxx
________________
41 408 US 238, 33 L Ed 2d 346, 92 S Ct 2726.
727
VOL. 267, FEBRUARY 7, 1997 727

Thus, these discretionary statutes are unconstitutional in their

operation. They are pregnant with discrimination and
discrimination is an ingredient not compatible with the idea of
equal protection of the laws that is implicit in the ban on Âcruel and
unusualÊ punishments.‰
Furman, thus, did not outlaw the death penalty because it

was cruel and unusual per se. While the U.S. Supreme
Court nullified all discretionary death penalty statutes in
Furman, it did so because the discretion which these
statutes vested in the trial judges and sentencing juries
was uncontrolled and without any parameters, guidelines,
or standards intended to lessen, if not altogether eliminate,
the intervention of personal biases, prejudices and
discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman, when most of
the states re-enacted their death penalty statutes now
bearing the procedural checks that were required by the
U.S. Supreme Court, said court affirmed the
constitutionality of the new
42
death penalty 43statutes in the
cases of44Gregg v. Georgia, Jurek v. Texas, and Profitt v.
Florida
Next, accused-appellant asseverates that the death
penalty is a cruel, inhuman or degrading punishment for
the crime of rape mainly because the latter, unlike murder,
does not involve the taking of life. In support of his
contention, accusedappellant largely relies on45
the ruling of
the U.S. Supreme Court in Coker v. Georgia. In Coker, the
U.S. Supreme Court ruled as follows:
„x x x It is now settled that the death penalty is not invariably cruel

and unusual punishment within the meaning of the Eighth
Amendment; it is not inherently barbaric or an unacceptable mode
of punishment for crime; neither is it always disproportionate to the
crime for which it is imposed. It is also established that imposing
________________
42 428 US 153, 49 L Ed 2d 859, 96 S Ct 2909.

43 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950.
44 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.
45 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.
728

capital punishment, at least for murder, in accordance with the

procedures provided under the Georgia statutes saves the sentence
from the infirmities which led the Court to invalidate the prior
Georgia capital punishment statute in Furman v. Georgia x x x
xxx
In Gregg [v. Georgia] x x x the CourtÊs judgment was that the
death penalty for deliberate murder was neither the purposeless
imposition of severe punishment nor a punishment grossly
disproportionate to the crime. But the Court reserved the question
of the constitutionality of the death penalty when imposed for other
crimes. x x x
That question, with respect to rape of an adult woman, is now
before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in
the statutes providing the punishment for that crime, has been
dramatically different. In reviving death penalty laws to satisfy
FurmanÊs mandate, none of the States that had not previously
authorized death for rape chose to include rape among capital
felonies. Of the 16 States in which rape had been a capital offense,
only three provided the death penalty for rape of an adult woman in
their revised statutes·Georgia, North Carolina, and Louisiana. In
the latter two States, the death penalty was mandatory for those
found guilty, and those laws were invalidated by Woodson and
Roberts. When Louisiana and North Carolina, respondent to those
decisions, again revised their capital punishment laws, they
reenacted the death penalty for murder but not for rape; none of the
seven other legislatures that to our knowledge have amended or
replaced their death penalty statutes since July 2, 1976, including
four States (in addition to Louisiana and North Carolina) that had
authorized the death sentence for rape prior to 1972 and had
reacted to Furman with mandatory statutes, included rape among
the crimes for which death was an authorized punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also
authorized the death penalty in some rape cases, but only where the
victim was a child and the rapist an adult, the Tennessee statute
has since been invalidated because the death sentence was
mandatory. x x x The upshot is that Georgia is the sole jurisdiction
in the United States at the present time that authorizes a sentence
729
VOL. 267, FEBRUARY 7, 1997 729

of death when the rape victim is an adult woman, and only two
other jurisdictions provide capital punishment when the victim is a
child.
The current judgment with respect to the death penalty for rape
is not wholly unanimous among state legislatures, but it obviously
weighs very heavily on the side of rejecting capital punishment as a
suitable penalty for raping an adult woman.
x x x [T]he legislative r ejection of capital punishment for rape
strongly confirms our own judgment, which is that death is indeed a
disproportionate penalty for the crime of raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly
reprehensible, both in a moral sense and in its almost total
contempt for the personal integrity and autonomy of the female
victim and for the latterÊs privilege of choosing those with whom
intimate relationships are to be established. Short of homicide, it is
the Âultimate violation of self.Ê It is also a violent crime because it
normally involves force, or the threat of force. or intimidation, to
overcome the will and the capacity of the victim to resist. Rape is
very often accompanied by physical injury to the female and can
also inflict mental and psychological damage. Because it
undermines the communityÊs sense of security, there is public injury
as well.
Rape is without doubt deserving of serious punishment; but in
terms of moral depravity and of the injury to the person and to the
public, it does not compare with murder, which does involve the
unjustified taking of human life. Although it may be accompanied
by another crime, rape by definition does not include the death of or
even the serious injury to another person. The murderer kills; the
rapist, if no more than that, does not. Life is over for the victim of
the murderer; for the rape victim, life may not be nearly so happy
as it was, but it is not over and normally is not beyond repair. We
have the abiding conviction that the death penalty, which Âis unique
in its severity and irrevocabilityÊ x x x is an excessive penalty for the
rapist who, as such, does not take human life.‰
The U.S. Supreme Court based its foregoing ruling on two

grounds: first, that the public has manifested its rejection
of the death penalty as a proper punishment for the crime
of rape through the willful omission by the state
legislatures to include rape in their new death penalty
statutes in the aftermath of Furman; and second, that
rape, while concededly a dastardly contemptuous violation
of a womanÊs spiritual in-
730

tegrity, physical privacy, and psychological balance, does

not involve the taking of life.
Anent the first ground, we fail to see how this could
have any bearing on the Philippine experience and in the
context of our own culture.
Anent the second ground, we disagree with the courtÊs
predicate that the gauge of whether or not a crime
warrants the death penalty or not, is the attendance of the
circumstance of death on the part of the victim. Such a
premise is in fact an ennobling of the biblical notion of
retributive justice of „an eye for an eye, a tooth for a tooth.‰
We have already demonstrated earlier in our discussion of
heinous crimes that the forfeiture of life simply because life
was taken, never was a defining essence of the death
penalty in the context of our legal history and cultural
experience; rather, the death penalty is imposed in heinous
crimes because the perpetrators thereof have committed
unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely
destructive effects on the national efforts to lift the masses
from abject poverty through organized governmental
strategies based on a disciplined and honest citizenry, and
because they have so caused irreparable and substantial
injury to both their victim and the society and a repetition
of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this
court has no doubts as to the innate heinousness of the
crime of rape,
46
as we have held in the case of People v.
Cristobal:
„Rape is the forcible violation of the sexual intimacy of another

person. It does injury to justice and charity. Rape deeply wounds
the respect, freedom, and physical and moral integrity to which
every person has a right. It causes grave damage that can mark the
victim for life. It is always an intrinsically evil act x x x an outrage
upon decency and dignity that hurts not only the victim but the
society itself.‰
________________
46 G.R. No. 116279, promulgated on January 29, 1996.
731
VOL. 267, FEBRUARY 7, 1997 731

We are not unaware that for all the legal posturings we

have so essayed here, at the heart of the issue of capital
punishment is the wistful, sentimental life-and-death
question to which all of us, without thinking, would
answer, „life, of course, over death.‰ But dealing with the
fundamental question of death provides a context for
struggling with even more basic questions, for to grapple
with the meaning of death is, in an indirect way, to ask the
meaning of life. Otherwise put, to ask what the rights are
of the dying is to ask what the rights are of the living.
„Capital punishment ought not to be abolished solely because it is

substantially repulsive, if infinitely less repulsive than the acts
which invoke it. Yet the mounting zeal for its abolition seems to
arise from a sentimentalized hyperfastidiousness that seeks to
expunge from the society all that appears harsh and suppressive. If
we are to preserve the humane society we will have to retain
sufficient strength of character and will to do the unpleasant in
order that tranquility and civility may rule comprehensively. It
seems very likely that capital punishment is a x x x necessary, if
limited factor in that maintenance of social tranquillity and ought
to be retained on this ground. To do otherwise is to indulge in the
luxury of permitting a sense of false delicacy to reign over the
47
necessity of social survival."
WHEREFORE, in view of all the foregoing, the Motion for

Reconsideration and the Supplemental48
Motion for
Reconsideration are hereby DENIED for LACK OF
MERIT.
________________
47 Donald Atwell Zoll, „A Wistful Goodbye to Capital Punishment,‰

National Review, December 3, 1971, pp. 1351–1354.
48 Three members of the Court voted to declare R.A. 7659
unconstitutional insofar as it reimposes the death penalty. Two of them
wrote Separate Opinions, which are attached as annexes hereto, without
indicating the names of the authors consistent with the CourtÊs policy
that, in death cases, ponentes of opinions·whether majority or minority
·are not to be indicated.
732

SO ORDERED.
Narvasa (C.J.); Padilla, Regalado, Davide, Jr.,

Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, Hermosisima, Jr., Panganiban and Torres, Jr.,
JJ., concur.
SEPARATE OPINION
Time has transformed man into a highly intellectual and

civilized, as well as, I wish to believe, a humane and
compassionate, being. The ancient edict of „an eye for an
eye, a tooth for a tooth‰ has since been abandoned by a
society that recognizes the good in every man and gives a
transgressor an opportunity to reform. Somehow, however,
certain vestiges of savage retribution still remain; indeed,
the taking of a human life continues, at least in some penal
systems, to be an acceptable punishment
In this country, the issue of whether or not the State
should impose the death penalty has recently been resolved
with the ratification, on 02 February 1987, of the
Constitution by 76.29% of the electorate. Section 19, Article
III, thereof, states:
„Sec. 19.(1) 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‰
Ours is a rule of law. The Supreme Court is not a political

entity; it can merely apply and interpret the law. It cannot,
and it will not, spare itself from this
constitutionallymandated duty. Death penalty cases are not
excepted. In the discharge of its grave responsibility,
nevertheless, the Court must act with greatest caution and
strictest circumspection for there can be no stake that can
be higher, and no penalty that can be graver, than the
extinction by the State of human life.
The determination of when to prescribe the death
penalty now lies with the sound discretion of the law-
making author-
733
VOL. 267, FEBRUARY 7, 1997 733

ity, the Congress of the Philippines, subject to the

conditions that the fundamental law has set forth; viz:
(1) That there must be compelling reasons to justify the

imposition of the death penalty; and
(2) That the capital offense must involve a heinous
crime.
It appears to me that the Constitution did not contemplate

a simple „reimposition‰ of the death penalty to offenses
theretofore already provided in the Revised Penal Code or
just because of it.
The term „compelling reasons‰ should be enough to
indicate that there must be a marked change in the milieu
from that which has prevailed at the time of adoption of the
1987 Constitution, on the one hand, to that which exists at
the enactment of the statute prescribing the death penalty,
upon the other hand, that would make it distinctively
inexorable to mandate the death penalty. That milieu must
have turned from bad to worse.
Most importantly, the circumstances that would
characterize the „heinous nature‰ of the crime and make it
so exceptionally offensive as to warrant the death penalty
must be spelled out with great clarity in the law. To

venture, in the case of murder, the crime could become
„heinous‰ within the Constitutional concept when, to
exemplify, the victim is unnecessarily subjected to a painful
and excruciating death, or in the crime of rape when the
offended party is callously humiliated or even brutally
killed by the accused.
I submit that, given the circumstances and the law
before us, the Constitutional fiat (now being raised for the
first time in the instant Motion for Reconsideration) in the
imposition of the death penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty of
reclusion perpetua (the next lower penalty than death).
734

SEPARATE OPINION
Death Penalty Law Unconstitutional

1
In his Supplemental Motion for Reconsideration dated 2
August 22, 1996 filed by his newly-retained counsel, the
accused raises for the first time a very crucial ground for
his defense: that Republic Act No. 7659, the law reimposing
the death penalty, is unconstitutional. In the Brief and
(original)
3
Motion for Reconsideration filed by his previous
counsel, this transcendental issue was not brought up.
Hence, it was not passed upon by this Court4 in its Decision
affirming the trial courtÊs sentence of death.
________________
1 It is called „Supplemental‰ because there was a (main) Motion for

Reconsideration filed by 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 was promulgated on June 25,
1996.
3 Atty. Julian R. Vitug, Jr.
4 The bulk of jurisprudence precludes raising an issue for the first
time only on appeal. See, for instance, Manila Bay Club Corporation vs.
Court of Appeals, 249 SCRA 303, October 13, 1995; Manila Bay Club
Corporation vs. Court of Appeals, 245 SCRA 715, July 11, 1995; Securities
and Exchange Commission vs. Court of Appeals, 246 SCRA 738, July 21,
1995. However, the Court resolved to tackle the question of
constitutionality of Republic Act No. 7659 in this case, anticipating that
the 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 the first opportunity. To let the issue pass unresolved just
because it was raised after the promulgation of the decision affirming
conviction may result in grave injustice.
735
VOL. 267, FEBRUARY 7, 1997 735

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,
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‰ (Italics
supplied)
The second and third sentences of the above provision are

new and had not been written in the 1935, 1973 or even in
the 1986 5 „Freedom Constitution.‰ They proscribe the
imposition of the death penalty „unless for compelling
reasons involving heinous crimes, Congress provides for it,‰
and reduced „any death penalty already imposed‰ to
reclusion perpetua. The provision has both a prospective
aspect (it bars the future imposition of the penalty) and a
retroactive one (it reduces imposed capital sentences to the
lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the
Constitution did not merely suspend theÊ imposition of the
death penalty, but in fact completely abolished it from the
statute
________________
5 In 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, JJ. Gutierrez, Jr., Feliciano, Gancayco,
Padilla, Bidin, Griño-Aquino and Medialdea, concurring) that the death
penalty was not abolished but only prohibited from being imposed. But
see also the persuasive Dissenting Opinion of Mme. Justice Ameurfina
Melencio-Herrera (joined by JJ. Narvasa, Paras, Sarmiento, Cortes and
Regalado) who contended that the Constitution totally abolished the
death penalty and removed it from the statute books. People vs. Muñoz
reversed the earlier „abolition‰ doctrine uniformly held in People v.
Gavarra, 155 SCRA 327, October 30, 1987, (per C.J. Yap); People vs.
Masangkay, 155 SCRA 113, October 27, 1987, (per J. Melencio-Herrera)
and People vs. Atencio, 156 SCRA 242, December 10, 1987 (per C.J.
Narvasa). It is time that these cases are revisited by this Court.
736

books. The automatic commutation or reduction to

reclusion perpetua of any death penalty extant as of the
effectivity of the Constitution clearly recognizes that, while
the conviction of an accused for a capital crime remains,
death as a penalty ceased to exist in our penal laws and
thus may no longer be carried out. This is the clear intent
of the framers
6
of our Constitution. As Comm. Bernas
exclaimed, "(t)he majority voted for the constitutional
abolition of the death penalty.‰
Citing this and other similar pronouncements of the
distinguished Concom delegate, 7
Mme. Justice Ameurfina
MelencioHerrera emphasized, „It is thus clear that when
Fr. Bernas sponsored the provision regarding the non-
imposition of the death penalty, what he had in mind was
the total abolition and removal from the statute books of
the death penalty. This
_______________
6 This quote is taken from I Record of the Constitutional Commission,

p. 676 (July 17, 1986) as follows:
„Fr. Bernas:
xxx xxx xxx
„My Collection on this is that there was a division in the Committee not on
whether the death penalty should be abolished or not, but rather on whether
the abolition should be done by the Constitution·in which case it cannot be
restored by the legislature·or left to the legislature. The majority voted for the
constitutional abolition of the death penalty. And the reason is that capital
punishment is inhuman for the convict and his family who are traumatized by
the waiting, even if it is never carried out. There is no evidence that the death
penalty deterred deadly criminals, hence, life should not be destroyed just in
the hope that other lives might be saved. Assuming mastery over the life of
another man is 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 from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So basically, this is the summary of the
reasons which were presented in support of the constitutional abolition of the
death penalty. (italics supplied)
7 Dissenting Opinion in People vs. Muñoz, supra, p. 129.
737
VOL. 267, FEBRUARY 7, 1997 737

became the intent of the framers of the Constitution when

they approved the provision and made it a part of the Bill
of Rights.‰ With such abolition as a premise, restoration
thereof becomes an exception to a constitutional mandate.
Being an exception and thus in derogation of the
Constitution, it must then be strictly construed
8
against the
State and liberally in favor of the people. In this light, RA
7659 enjoys no presumption of constitutionality.
The Constitution Strictly Limits

Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1) effectively
removed the death penalty from the then existing statutes
but (2) authorized Congress to restore it at some future
time to enable or empower9 courts to reimpose it on
condition that it (Congress) finds „compelling reasons,
involving heinous crimes.‰ The language of the
Constitution is emphatic (even if
________________
8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held
that a statute which 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 that RA 7659 has validly restored the death
penalty which may now be imposed provided that the prosecution proves,
and the court is convinced, that (a) the accused is guilty of a crime
designated by RA 7659 as capital, (b) whose commission is accompanied
by aggravating circumstances as defined by Arts, 14 and 15 of the
Revised Penal Code, (c) the accompanying aggravating circumstance
must be one which can be characterized by the court as making the crime
„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 is the courts·not Congress·that have the responsibility of
determining the heinousness of a crime and the compelling reason for its
imposition upon a particular offender, depending on the facts of each
case. I cannot however subscribe to this view. The Constitution clearly
identifies Congress as the sovereign entity which is given the onus of
fulfilling these two constitutional limitations.
738

10
„awkward" ): the authority of Congress to „provide for it‰ is
not absolute. Rather, it is strictly limited:
(1) by „compelling reasons‰ that may arise after the

Constitution became effective; 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 crimes are „heinous‰ before it
could exercise its law-making prerogative to restore the
death penalty. For clarityÊs 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
11
of this fundamental mandate, Congress
enacted RA 7659 to „provide for it‰ (the death penalty) (1)
by amending certain provisions of the Revised Penal
12 13
Code; (2) by incorporating a new14 article therein; and (3)
by amending certain special laws.
But RA 7659 did not change the nature or the elements
of the crimes stated in the Penal Code and in the special
laws. It merely made the penalty more severe. Neither did
its provi-
________________
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, 1995; People 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 Illegal Detention; 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.
739
VOL. 267, FEBRUARY 7, 1997 739

sions (other than the preamble, which was cast in general

terms) discuss or justify the reasons for the more severe
sanction, either collectively for all the offenses or
individually for each of them.
Generally, it merely reinstated the concept of and the
method by which the death penalty had been imposed until
February 2, 1987, when the Constitution took effect as
follows: (1) a person is convicted of a capital offense; and (2)
the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.
The basic question then is: In enacting RA 7659, did
Congress exceed the limited authority granted it by the
Constitution? More legally put: In reviving the death
penalty, did Congress act with grave abuse of discretion or
in excess of the very 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 or characterize the meaning of
„heinous.‰ Neither did Congress. As already stated, RA
7659 itself merely selected some existing crimes for which it
prescribed death as an applicable penalty. It did not give a
standard or a characterization by which courts may be able
to appreciate the heinousness of a crime. I concede that
Congress was only too well aware of its constitutionally
limited power. In deference 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 are

heinous for being grievous, odious and hateful offenses and which,
by reason of their inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just,
civilized and ordered society.‰
In my humble view, however, the foregoing clause is clearly

an insufficient definition or characterization of what a hei-
740

nous crime is. It simply and gratuitously declared certain

crimes to be „heinous‰ without adequately justifying its
bases therefor. It supplies no useful, workable, clear and
unambiguous standard by which the presence of
heinousness can be determined. Calling the crimes
„grievous, odious and hateful‰ is not a substitute for an
objective juridical definition. Neither is the description
„inherent or manifest wickedness, viciousness, atrocity and
perversity.‰ Describing blood as blue does not detract from
its being crimson in fact; and renaming gumamela as rose
will not arm it with thorns.
Besides, a preamble is really not an integral part of a
law. It is merely an introduction to show its intent or
purposes. It cannot be the origin of rights and obligations.
Where the meaning of a statute is clear and unambiguous,

the preamble can neither expand 15
nor restrict its operation,
much less prevail over its text. In this case, it cannot be
the authoritative source to show compliance with the
Constitution.
As already alluded to, RA 7659 merely amended certain
laws to prescribe death as the maximum imposable penalty
once the court appreciates16 the presence or absence of
aggravating circumstances. ThereÊs nothing really new
that Congress did which it could not have otherwise done
had such provision not been included in our fundamental
law. In other words, it just reinstated capital punishment
for crimes which were already punishable with death prior
to the
________________
15 A preamble is not an essential part of a statute. (Agpalo, Statutory

Construction, Second Edition 1990; Martin, Statutory Construction, Sixth
Edition, 1984). The function of the preamble is to supply reasons and
explanation and not to confer power or determine rights. Hence it cannot
be given the effect of enlarging the scope or effect of a statute. (C. Dallas
Sands, Statutes and Statutory Construction, Fourth Edition, Volume IA,
§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,‰ or when it is „committed with any of the
attendant circumstances enumerated‰ in said section.
741
VOL. 267, FEBRUARY 7, 1997 741

effectivity of the 1987 Constitution. With 17

the possible
exception of plunder and qualified bribery, no new crimes
were introduced by RA 7659. The offenses punished by
death under said law 18
were already so punishable by the
Revised Penal Code and by special laws. In short, Sec. 19,
Article III of the Constitution did not have any impact upon
the legislative action. It was effectively ignored by Congress
in enacting the capital punishment law.
During the debate on Senate Bill No. 891 which later
became RA 7659, Sen. Jose Lina, in answer to a question of
19
Sen. Ernesto Maceda, wryly said:
„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 which were already penalized with death prior to
the charterÊs effectivity, Congress I submit has not fulfilled
its specific and positive constitutional duty. If the
Constitutional Commission intended merely to allow
Congress to prescribe death for these very same crimes, it
would not have written Sec. 19 of Article III into the
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 restoration possible only under and
subject to stringent conditions is evident not only from the
language of the Constitution but also from the charter
debates on this matter.
________________
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 compelling reasons 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 the prosecution must prove before courts can
impose the extreme penalty. Just the same however, the law did not
explain why said circumstances would make the crimes heinous. Neither
did it set forth the compelling reasons therefor.
19 Record of the Senate, First Regular Session, January 18 to March
11, 1993, Volume III, No. 48, January 25, 1993, p. 122.
742

The critical phrase „unless for compelling reasons involving

heinous crimes‰ was an amendment introduced by Comm.
Christian Monsod. In explaining what possible crimes
could qualify as heinous, he and Comm. Jose Suarez agreed
on „organized
20
murder‰ or „brutal murder of a rape
victim." Note
________________
20 I Record of the Constitutional Commission, July 18, 1986, pp. 742–

743:
„MR. SUAREZ. The Gentleman advisedly used the words Âheinous crimes,Ê
whatever is the pronunciation. Will the Gentleman give examples of Âheinous
crimesÊ? For example, would the head of an organized syndicate in dope
distribution or dope smuggling fall within the qualification of a heinous
offender such as to preclude the application of the principle of abolition of
death penalty?
MR. MONSOD. Yes, Madam President. That is one of the possible crimes
that would qualify for a heinous crime. Another would be organized murder. In
other words, yesterday 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·I think it was Honorable Laurel who said this yesterday·it is
only God who gives and takes life. However, the voice of the people is also the
voice of God, and we cannot presume to have the wisdom of the ages. Therefore,
it is entirely possible in the future that circumstances may arise which we
should not preclude today. We know that this is a very difficult question. The
fact that the arguments yesterday were 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 its wisdom and as
representatives of the people, to still impose the death penalty for the common
good, in specific cases.
MR. SUAREZ. Thank you. I would like to pursue some more the
GentlemanÊs defi-nition of Âheinous crimes.Ê Would the brutal murder of a rape
victim be considered as falling within that classification?
MR. MONSOD. Madam President, yes, particularly, if it is a person in
authority. He would, therefore, add as an ag
743
VOL. 267, FEBRUARY 7, 1997 743

that the honorable commissioners did not just say „murder‰

but organized murder; not just rape but brutal murder of a
rape victim. While the debates were admittedly rather
scanty, I believe that the available information shows that,
when deliberating on „heinousness,‰ the Constitutional
Commission did not have in mind the offenses already
existing and already penalized with death. I also believe
that the heinousness clause requires that:
1) the crimes should be entirely new offenses, the

elements of which have an inherent quality, degree
or level of perversity, depravity or viciousness
unheard of until then; or
2) even existing crimes, provided some new element or
essential ingredient like „organized‰ or „brutal‰ is
added to show their utter perversity, odiousness or
malevolence; or
3) the means or method by which the crime, whether
new or old, is carried out evinces a degree or
magnitude of extreme violence, evil, cruelty,
atrocity, viciousness
21
as to demonstrate its
heinousness.
For this purpose, Congress could enact an entirely new set

of circumstances to 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 heavier penalty
is prescribed.
Compelling Reasons
Quite apart from requiring the attendant element of

heinousness, the Constitution also directs Congress to
determine „compelling reasons‰ for the revival of the
capital penalty. It
________________
gravating circumstance to the crime the abuse of his position in authority.

MR. SUAREZ. Thank you.‰
21 Some examples of this may be taken by Congress from Richmond

vs. Lewis, 506 US 40, like „gratuitous violence‰ or „needless mutilation‰
of the victim.
744

is true
22
that paragraphs 3 and 4 of the preamble of RA
7659 made some attempt at meeting this requirement.
But such effort was at best feeble and inconsequential. It
should be remembered that every word or phrase in the

Constitution is sacred and should never be ignored,
cavalierly-treated or brushed aside. Thus, I believe that the
compelling reasons and the characterization of heinousness
cannot be done wholesale but must be shown for each and
every crime, individually and separately.
The words „compelling reasons‰ were included in the
Charter because, in the words of Comm. Monsod, „in the
future, circumstances may arise which we should not
preclude today x x x and that the conditions and the
situation (during the deliberations of the Constitutional
Commission) might change for very specific 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 23
Edcel
Lagman tried to explain these compelling reasons:
„MR. LAGMAN. So what are the compelling reasons now, Mr.

Speaker? x x x
________________
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 affected the nationÊs efforts
towards sustainable economic development and prosperity while at the same time has
undermined the peopleÊs faith in the Government and the latterÊs ability to maintain peace and
order in the country;
WHEREAS, the Congress, in the interest of justice, public order and the rule of law, and the
need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling
reasons to impose the death penalty for said crimes‰;
23 Record of the House of Representatives, First Regular Session, 1992–

1993, Volume IV, February 10, 1993, p. 674, italics supplied.
745
VOL. 267, FEBRUARY 7, 1997 745

MR. GARCIA (P.). The worsening peace and order condition in the
country, Mr. Speaker. That is 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. But before we
dissect this particular „compelling reason,‰ may we know what
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 kindly elaborate on that answer? Why is justice a
compelling reason as if justice was not obtained at the time the
Constitution abolished the death penalty? Any compelling reason
should be a supervening circumstance after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and
again that if one lives in an organized society governed by law,
justice demands that crime be punished and that the penalty
imposed be commensurate with the offense 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, it refers to reasons which would
supervene or come after the approval of the 1987 Constitution. Is
he submitting that justice, in his own concept of a commensurate
penalty for the offense committed, was not obtained in 1987
when the Constitution abolished the death penalty 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 this time, justice demands that the
appropriate penalty must be meted out for 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
746

justify the revival of state-decreed deaths. In fact, I dare say that

these „reasons‰ were even non-existent. Statistics from the
Philippine National Police show that the crime volume and crime
rate particularly on those legislated capital offenses did not worsen
but in fact declined between 1987, the date when the Constitution
took effect, and 1993, the year when RA 7659 was enacted.
24
Witness the following debate also between 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 us the 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 that correct, 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 death penalty? May we know from the
distinguished Gentleman the volume of 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.
________________
24 Record of the House of Representatives, First Regular Session, 1992–

1993, Vol. III, November 10, 1992, p. 448; italics supplied.
747
VOL. 267, FEBRUARY 7, 1997 747

MR. LAGMAN. This was the year immediately after the abolition of
the death penalty. Could the 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 volume of robbery cases declined from 22,942 in
1987 or crime rate of 40 percent to 16,926 or a crime rate of 29
percent. Would the Gentleman confirm 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 in 1987 was
12,870 or a crime rate of 22 percent. The volume in 1988 was
11,132 or a crime rate of 19 percent. Would the Gentleman
confirm that, Mr. Speaker?
MR. GARCIA (P.). As I said, Mr. Speaker, we are reading from the
same document and I would not want to say that the Gentleman
is misreading the document that I have 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 some figures on the number of persons arrested
in regard to drug-related
25
offenses in the year 1987 as
compared to 1991:
„Let me cite this concrete statistics by the Dangerous Drugs 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 figure dropped to 2,686 in 1988.
By the way, I will furnish my Colleagues with a photocopy of this
report.
From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit
to 2,862 in 1989. It still decreased to 2,202 in 1990, and it increased
again to 2,862 in 1991.
________________
25 Record of the Senate, First Regular Session, January 18 to March

11, 1993, Volume III, No. 50, January 27, 1993, pp. 176–177.
748

But in 1987, when the death penalty was abolished, as far as the
drug-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 the death penalty argue that its reimposition
„would 26pose as an effective deterrent against heinous
crimes." However no statistical data, no sufficient proof,
empirical or otherwise, have been submitted to show with
any conclusiveness the relationship between the
prescription of the death penalty for certain offenses and
the commission or non-commission
27
thereof. This is a theory
that can be debated on and on, in the same manner that
another proposition·
_______________
26 See „Sponsorship Remarks‰ of Rep. Manuel Sanchez, Record of the

House of Representatives, 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 was evidence to show that the death penalty had
deterred the commission of deadly crimes, none of them was able to
say that there was evidence, conclusive evidence, for that.
MR. RAMA. I am curious. Who are these experts then·social
scientists 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 discourages crimes or criminality. Of course,
Commissioner Bernas knows that never in our history has there been
a higher incidence of crime. I say that criminality was at its zenith
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 any rate, does the sponsor think that in removing
the death penalty, it would not affect, one way or another, the crime
rate of the country?
749
VOL. 267, FEBRUARY 7, 1997 749

that the real deterrent to crime is the certainty of

immediate arrest, prosecution and conviction of the culprit
without unnecessary risk, expense and inconvenience to

the victim, 28his heirs or his witnesses·can be argued
indefinitely. This debate can last till the academics grow
weary of the spoken word, but it would not lessen the
constitutionally-imposed burden of Congress to act within
the „heinousness‰ and „compelling reasons‰ limits of its
death-prescribing power.
Other Constitutional Rights

Militate Against RA 7659
It should be emphasized that the constitutional ban against

the death penalty is included in our Bill of Rights. As such,
it should.·like any other guarantee
29
in favor of the accused
·be zealously protected, and any exception thereto
meticu-
________________
FR. BERNAS. The position taken by the majority of those who

voted in favor of this provision is that means other than the death
penalty should be used for the prevention of crime.‰
28 Cf. Report to the United Nations Committee on Crime Prosecution

and Control, United 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 unthinkable without an assurance of the primacy of a bill of
rights. Precisely a constitution exists to assure that in the discharge of
the governmental functions, the dignity that is the birthright of every
human being is duly safeguarded. x x x‰ In the context of the role of a bill
of rights the vast powers of govern-ment are clearly to be exercised
within the limits set by the constitution, particularly the bill of rights. In
Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-
24693, July 31, 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. The guarantee in Sec. 1 of Article III of the
Constitution embraces life, liberty and property. In the words of Justice
Roberto Concepcion in People vs. Hernandez, (99 Phil. 515, 551–2 [1956]),
„x x x individual freedom is too basic, too transcendental and vital in a
republican state, like ours, to be denied upon mere general princi
750

lously screened. Any doubt should be resolved in favor of

the people, particularly
30
where the right pertains to persons
accused of crimes. Here the issue is not just crimes·but
capital crimes!
So too, all our previous Constitutions, including the first
one ordained at Malolos, guarantee that "(n)o person shall
be deprived
31
of life, liberty or property without due process
of law." This primary right of the people to enjoy life·life
at its fullest, life in dignity and honor·is not only
reiterated by the 1987 Charter but is in fact fortified by its
other pro-life and pro-human rights provisions. Hence, the
Constitution values the dignity of every human32person and
guarantees full respect for 33 human rights, expressly
prohibits any form of torture which is arguably a lesser
penalty than death, emphasizes the individual right to life
by giving protection to the life of the34 mother and the
unborn from the moment of conception and establishes
the peopleÊs
35
rights to health, a balanced ecology and
education.
This Constitutional explosion of concern for man more
than property, for people more than the state, and for life
more than mere existence augurs well for the strict
application of the constitutional limits against the revival
of death penalty
________________
ples and abstract consideration of public safety. Indeed, the

preservation of liberty is such a major preoccupation of our political
system that, not satisfied with guaranteeing its enjoyment in the very
first paragraph of Section (1) of the Bill of Rights, 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. x x x‰ These guarantees are preserved in the
1987 Constitution, according to Fr. Bernas.
30 See, for instance, People vs. Sinatao, 249 SCRA 554, 571, October
25, 1995, and People 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.
35Art. II, Secs. 15, 16 & 17.
751
VOL. 267, FEBRUARY 7, 1997 751

as the final and irreversible exaction of society against its

perceived enemies.
Indeed, volumes have been written about individual
rights to free speech, assembly and even religion. But the
most basic and most important of these rights 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 fact that the death penalty militates against
the poor, the powerless and the marginalized. The „Profile
of 165 Death Row 36
Convicts‰ submitted by the Free Legal
Assistance Group highlights this sad fact:
"(1) Since the

37
reimposition of the death penalty, 186
persons have been sentenced to death. At the end
of 1994, there were 24 death penalty convicts, at
the end of 1995, the number rose to 90; an average
of seven (7) convicts per month, double the monthly
average of capital sentences imposed the prior year.
From January to June 1996, the number of death
penalty convicts reached 72, an average of 12
convicts per month, almost double the monthly
average of capital sentences imposed in 1995.
(2) Of the 165 convicts polled, approximately twenty
one percent (21%) earn between P200 to P2,900
monthly; while approximately twenty seven percent
(27%) earn between P3,000 to P3,999 monthly.
Those earning above P4,000 monthly are
exceedingly few: seven percent (7%) earn between
P4,000 to P4,999, four percent (4%)
________________
36 For details, see Annex A of the Memorandum for the Accused-

Appellant dated September 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 trial courts since the effectivity of RA 7659. The Philippine Star
issue of December 9, 1996, page 17, however reports that, quoting Sen.
Ernesto Herrera, the total number of death row inmates has gone up to
267, as of November, 1996, of whom more than one half (139) are rape
convicts. Some major dailies (Philippine Daily Inquirer, Philippine Star,
Manila Standard) in their February 3, 1997 issue up the death row
figure to 300, as of the end of January 1997, with 450 as the probable
number at the end of 1997.
752

earn between P5,000 to P5,999, seven percent (7%)

earn between P6,000 to P6,999, those earning
between P7,000 to P15,000 comprise only four
percent (4%), those earning P 15,000 and above only
one percent (1%). Approximately thirteen percent
(13%) earn nothing at all, while approximately two
percent (2%) earn subsistence wages with another
five percent (5%) earning variable income.
Approximately nine percent (9%) do not know how
much they earn in a month.
(3) Thus, approximately two-thirds of the convicts,
about 112 of them, earn below the government-
mandated minimum monthly wage of P4,290; ten
(10) of these earn below the official poverty line set
by government. Twenty six (26) earn between
P4,500.00 and P11,000.00 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 are unsure of
their monthly income. Twenty two (22) convicts earn
nothing 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 five percent
(35%) are in the transport and construction
industry, with thirty 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 them drivers.

Eighteen percent (18%) are in clerical, sales and
services industries, with fourteen (14) sales workers
(engaged in buy and sell or fish, cigarette or rice
vendors), twelve (12) service workers (butchers,
beauticians, security guards, shoemakers, tour
guides, computer programmers, radio technicians)
and four (4) clerks (janitors, MERALCO employee
and clerk). About four percent (4%) are government
workers, with six (6) persons belonging to the
armed services (AFP, PNP and even CAFGU).
Professionals, administrative employee and
executives comprise only three percent (3%), nine
percent (9%) are unemployed.
(5) None of the DRCÊs use English as their medium of
communication, About forty four percent (44%), or
slightly less than half speak and understand
Tagalog; twenty six percent (26%), or about one-
fourth, speak and understand Cebuano. The rest
speak and understand Bicolano, Ilocano, Ilonggo,
Kapampangan, Pangasinense and Waray. One (1)
convict is a foreign national and speaks and
understand Niponggo.
(6) Approximately twelve percent (12%) graduated from
college, about forty seven percent (47%) finished
varying levels of ele
753
VOL. 267, FEBRUARY 7, 1997 753

mentary education with twenty seven (27)

graduating from elementary. About thirty five
percent (35%), fifty eight (58) convicts, finished
varying levels of high school, with more than half of
them graduating 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

socioeconomic situations sufficiently demonstrates that RA
7659 has militated against the poor and the powerless in
society·those who cannot afford the legal services
necessary in capital crimes, where extensive preparation,

investigation, research and presentation are required. The
best example to show the sad plight of the underprivileged
is this very case where the crucial issue of constitutionality
was woefully omitted in the proceedings in the trial court
and even before this Court until the Free Legal Assistance
Group belatedly brought it up in the Supplemental Motion
for Reconsideration.
To the poor and unlettered, it is bad enough that the law
is complex and written in a strange, incomprehensible
language. Worse still, judicial proceedings are themselves
complicated, intimidating and damning. The net effect of
having a death penalty that is imposed more often than not
upon the impecunious is to engender in the minds of the
latter, a sense·unfounded, to be sure, but unhealthy
nevertheless·of the unequal balance of the scales of
justice.
Most assuredly, it may be contended that the foregoing
arguments, and in particular, the statistics above-cited, are
in a very real sense prone to be misleading, and that
regardless of the socio-economic profile of the DRCs, the
law reviving capital punishment does not in any way single
out or discriminate against 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 and written 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, whatever the penalties set by law, it
seems to me that there will always be a certain class or
classes of people in our society who, by reason of their pov-
754

erty, lack of educational attainment and employment

opportunities, are consequently confined to living, working
and subsisting in less-than-ideal environments, amidst
less-thangenteel neighbors similarly situated as
themselves, and are therefore inherently more prone to be
involved (as victims or perpetrators) in vices, violence and
crime. So from that perspective, the law reviving the death
penalty neither improves or worsens their lot substantially.

Or, to be more precise, such law may even be said to help
improve their situation (at least in theory) by posing a
much stronger deterrent to the commission of heinous
crimes.
However, such a viewpoint simply ignores the very basic
differences that exist in the situations of the poor and the
non-poor. Precisely because the underprivileged 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 rise above
themselves and their situation. The basic postulates for
such a position are, I think, simply that everyone
ultimately wants to better himself and that we cannot
better ourselves individually to any significant degree if we
are unable to advance as an entire people and nation. All
the pro-poor provisions of the Constitution point in this
direction. Yet we are faced with this law that effectively
inflicts the ultimate punishment on none other than the
poor and disadvantaged in the greater majority of cases,
and which penalty, being so obviously final and so
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 statute books. It did not merely suspend or
prohibit its imposition.
(2) The Charter effectively granted a new right: the
constitutional right against the death penalty,
which is really a species of the right to life.
755
VOL. 267, FEBRUARY 7, 1997 755

(3) Any law reviving the capital penalty must be

strictly construed against the State and liberally in
favor of the accused because such a statute

denigrates the Constitution, impinges on a basic
right and tends to deny equal justice to the
underprivileged.
(4) Every word or phrase in the Constitution is sacred
and should never be ignored, cavalierly-treated or
brushed aside.
(5) Congressional power to prescribe death is severely
limited by two concurrent requirements:
(a) First, Congress must provide a set of attendant

circumstances which the prosecution must prove
beyond reasonable doubt, apart from the elements
of the crime and itself. Congress must explain why
and how these circumstances define or characterize
the crime as „heinous.‰
(b) Second, Congress has also the duty of laying out
clear and specific reasons which arose after the
effectivity of the Constitution compelling the
enactment of the law. It bears repeating that these
requirements are inseparable. They must both be
present in view of the specific constitutional
mandate·„for compelling reasons involving
heinous crimes.‰ The compelling reason must flow
from the heinous nature of the offense.
(6) In every law reviving the capital penalty, the

heinousness and compelling reasons must be set
out for each and every crime, and not just for all
crimes generally and collectively.
„Thou shall not kill‰ is a fundamental commandment to all

Christians, as well as to the rest of the38
„sovereign Filipino
people‰ who believe in Almighty God. While the Catholic
Church, to which the vast majority of our people belong,
acknowledges the power of public authorities to prescribe
the death penalty, it advisedly39
limits such prerogative only
to „cases of extreme gravity." To quote Pope John Paul II
in his
________________
38 The preamble of the Constitution is theistic. It declares the

„sovereign Filipino peopleÊs‰ imploration of the „aid of Almighty God.‰
39 Catechism of the Catholic Church, p. 512, Word and Life
Publications:
756

40
encyclical Evangelium Vitae (A Hymn to Life),
„punishment must be carefully evaluated and decided
upon, and ought not
_______________
„2266. Preserving the common good of society requires rendering the aggressor
unable to inflict harm. For this reason the traditional teaching of the Church
has acknowledged as well-founded the right and duty of legitimate public
authority to punish malefactors by means of penalties commensurate with the
gravity of the crime, not excluding, in cases of extreme gravity, the death
penalty. For analogous reasons those holding authority have the right to repel
by armed force aggressors against the community in their charge.
40 Evangelium Vitae, items Nos. 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!
Yet from the beginning, faced with the many and often tragic cases which occur
in the life of individuals and society, Christian reflection has sought a fuller
and deeper understanding of what GodÊs commandment prohibits and
prescribes. There are, in fact, situations in which values proposed by GodÊs Law
seem to involve a genuine paradox. This happens for example in the case of
legitimate defense, in which the right to protect oneÊs own life and the duty not
to harm someone elseÊs life are difficult to reconcile in practice. Certainly, the
intrinsic value of life and the duty to love oneself no less than others are the
basis of a true right to self-defense. The demanding commandment of love of
neighbor, set forth 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-defense out of lack of love for life or for self. This can only be done in virtue
of a heroic love which 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 sublime example of this self-offering is the Lord Jesus himself.
Moreover, legitimate defense can be not only a right but a grave duty for
someone responsible for anotherÊs life, the common good of the family or of the
State.Ê Unfortunately it happens that the need to render the aggressor
incapable of causing harm sometimes involves taking his life. In this case,
757
VOL. 267, FEBRUARY 7, 1997 757

go to the extreme of executing the offender except in cases

of absolute necessity: in other words, when it would not be
possible otherwise to defend society x x x (which is) very
rare, if not practically non-existent.‰
Although not absolutely banning it, both the
Constitution and the Church indubitably abhor the death
penalty, Both are
________________
the fatal outcome is attributable to the aggressor whose action brought it

about, even though 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
this matter there is a growing tendency, both in the Church and in civil society,
to demand that it be applied in a very limited way or even that it be abolished
completely. 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 GodÊs
plan for man and society. The primary purpose of the punishment which society
inflicts is „to redress the disorder caused by the offense.‰ Public authority must
redress the violation of personal and social rights by im posing on the offender
an adequate punishment for the crime, as a condition for the offender to regain
the exercise of his or her freedom. In this way authority also fulfills the
purpose of defending public order and ensuring peopleÊs safety, while at the
same time offering the offender an incentive and help to change his or her
behavior and be rehabilitated.
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 to the extreme of executing the offender except in cases of absolute
necessity: in other words, when it would not be possible otherwise to defend
society. Today however, 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: „lf bloodless means are sufficient to defend human lives
against an aggressor and to protect public order and the safety of persons,
public authority must limit itself to such means, because they better
correspond to the concrete conditions of the common good and are more in
conformity to the dignity of the human person,‰
758

pro-people and pro-life. Both clearly recognize the primacy

of human life over and above even the state which man
created precisely to protect, cherish and defend him. The
Constitution reluctantly allows capital punishment only for
„compelling reasons involving heinous crimes‰ just as the
Church grudgingly permits it only for reasons of „absolute
necessity‰ involving crimes of „extreme gravity,‰ which are
very rare and practically non-existent.
In the face of these evident truisms, I ask: Has
Congress, in enacting RA 7659, 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 the Supplemental Motion for
Reconsideration and to modify the dispositive portion of the
decision of the trial court by deleting the words „DEATH,
as provided for under RA 7659," and substitute therefor
reclusion perpetua. I further vote to declare RA 7659
unconstitutional insofar as it prescribes the penalty of
death for the crimes mentioned in its text.
Motion for reconsideration denied.
Note.·If capital punishment is justified, it serves as a

deterrent but if injudiciously imposed, it generates
resentment. (People vs. Godoy, 250 SCRA 676 [1995])
··o0o··
759
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(Crimrev) People V Echagaray

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SUPREME COURT REPORTS ANNOTATED VOLUME 267 15/2/21, 4:08 PM

682 SUPREME COURT REPORTS ANNOTATED

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.

Remedial Law; Appeal; Matters neither alleged in the pleadings

VOL. 267, FEBRUARY 7, 1997 683

People vs. Echegaray

cused-appellant, it appeared that despite the admission made by

penalty entails: (1) that Congress define or describe what is meant

684 SUPREME COURT REPORTS ANNOTATED

People vs. Echegaray

that qualify as heinous in accordance with the definition or

sentence involving crimes punishable by reclusion perpetua to

VOL. 267, FEBRUARY 7, 1997 685

People vs. Echegaray

an innocent man or one criminal but not heinously criminal, R.A.

686 SUPREME COURT REPORTS ANNOTATED

People vs. Echegaray

penalty. In fact, the long road of the American abolitionist

Remedial Law; Appeal; Same; Same; Determination of when to

the Philippines, subject to the conditions that the fundamental law

Remedial Law; Appeal; The automatic commutation or

VOL. 267, FEBRUARY 7, 1997 687

People vs. Echegaray

it,‰ and reduced „any death penalty already imposed‰ to reclusion

688 SUPREME COURT REPORTS ANNOTATED

People vs. Echegaray

upon the legislative action. It was effectively ignored by Congress in

MOTION FOR RECONSIDERATION of a decision of the

The facts are stated in the resolution of the Court.

On June 25, 1996, we rendered our decision in the instant

VOL. 267, FEBRUARY 7, 1997 689

"[1] Accused-appellant should not have been prosecuted

from preparing an adequate defense.

a. For crimes where no death results from the offense,

In sum, the Supplemental Motion for Reconsideration

It is a rudimentary principle of law that matters neither

1 249 SCRA 303, 307–308.

690 SUPREME COURT REPORTS ANNOTATED

„If well-recognized jurisprudence precludes raising an issue only for

It is to be remembered that during the proceedings of the

a) the rape case was motivated by greed, hence, a

a) the ill-motive of the victimÊs maternal grandmother

Thus, a second hard look at the issues raised by the new

a) the affidavit of desistance written by the victim

VOL. 267, FEBRUARY 7, 1997 691

c) the failure of this Court to clearly establish the

Apparently, after a careful scrutiny of the foregoing points

merely an additional ground to buttress the accusedÊs defenses, not

692 SUPREME COURT REPORTS ANNOTATED

desistance, create doubts as to the truth of the testimony given by

In the case at bar, all that the accused-appellant offered as

The settled rule is that the client is 6bound by the

extensive discussion in support of his line of defense. There

5 People v. Pimentel, 118 SCRA 695 [1982]; citing People v. Manigbas,

VOL. 267, FEBRUARY 7, 1997 693

argument or any witness to defend his client. Neither has

Although its origins seem lost in obscurity, the imposition

One of the indispensable powers of the state is the power

694 SUPREME COURT REPORTS ANNOTATED

visions therein. The Revised Penal Code, as it was

„The penalty complained of is neither cruel, unjust nor excessive. In

Consequently, we have time and again emphasized that our

courts are not the fora for a protracted debate on the