Reimposition of death penalty: A question of the country’s palabra de honor
Credit to Author: DANILO T. IBAYAN| Date: Fri, 06 Sep 2019 16:54:26 +0000
THROUGH the many years of debating the abolition of the death penalty, then of its reimposition, then of its abolition once again, and then of its reimposition yet once more, the Filipino public should already be familiar with the pros and cons of the issue. Those who favor its imposition have argued that it serves the ends of justice as a means by which society avenges or punishes the acts of those who kill others. They contend that it is reserved for the most heinous offenses. The House of Representatives has passed a bill reimposing the death penalty for those guilty of capital drug offenses. Those who oppose it cite figures that prove that capital punishment does not effectively deter crimes. They also argue that it has been proven to have been meted on innocent persons, especially the poor with no capacity to hire competent counsel to defend them. The Church argues that no one has the right to take a life except God.
A less known argument concerns a commitment made by the country under an international treaty to abolish the death penalty forever. After then-President Gloria Macapagal Arroyo signed in June 2006 Republic Act (RA) 9046 abolishing the death penalty, the Philippines signed in the same year and ratified the following year the Second Optional Protocol of the International Covenant on Civil and Political Rights which irrevocably abolishes the death penalty. The Philippines subsequently assured the United Nations and the international community of its commitment to fulfill its obligations under the protocol that it signed and ratified on several occasions:
– In its 2008 Universal Periodic Review (UPR) Report to the United Nations Human Rights Council, the Philippines stated the following: “In consonance with promotion of the right to life, the Philippine Government has condemned all forms of killings. In testimony of its firm commitment to the value and sanctity of human life and in the belief that the defense of life is strengthened by eliminating the exercise of judicial authorization to take life, the Philippines abolished the death penalty [and] ratified the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR). To sustain this commitment, the Philippines co-sponsored and co-authored the resolution calling for a Moratorium on Executions, which was adopted by the UN General Assembly on 18 December 2007.”
– In its 2011 State Report to the ICCPR Human Rights Committee, the Philippines stated the following:
“With the signing of the Second Optional Protocol, the Philippine Government reemphasized its unrelenting commitment to strengthen the protection of human rights by co-sponsoring and co-authoring the United Nations resolution on the Global Moratorium on Executions and/or Abolition of the Death Penalty during the 62nd and 63rd General Assembly.”
– The Philippines voted in favor of three General Assembly Resolutions on the moratorium on the use of the death penalty: 1) A/RES/62/149, adopted Dec. 18, 2007; 2) A/RES/65/206, adopted Dec. 21, 2010; and 3) A/RES/69/186, adopted Dec. 18, 2014.
No withdrawal clause
Unlike the First Optional Protocol to the ICCPR, which has a withdrawal mechanism under its Art. 12 — “Any State Party may denounce the present protocol” — the Second Optional Protocol has no procedural clause for withdrawal. The Philippines is one of 116 states parties to the First Optional Protocol and already two of the ratifying states — Jamaica and Trinidad and Tobago — have denounced the protocol. According to the UN Human Rights Committee, a denunciation clause was deliberately omitted under the Second Optional Protocol because once the people are accorded the protection of their rights they shall not be deprived of such protection. Human rights advocates explain that “ratification of the Second Optional Protocol will prevent future governments from reinstating the death penalty. This is a significant step as changes in government may lead to the reintroduction of the death penalty.” As Denys Robiliard, lawyer and former president of the French branch of Amnesty International explains, “What one law does, another can undo and we know that at a time of crisis the death penalty can be reestablished. This is why we must convince parliamentarians in abolitionist countries of the necessity of making international commitments in this regard. Even if abolition exists in national law, only international commitments are irreversible.” Human rights experts further affirm that once a State ratifies the Second Protocol, “there is no going back, the death penalty is irrevocably abolished in that country regardless of changes in government and political situation.”
There were countries in the past that tried to withdraw from treaties with no exit provisions. The impossibility of withdrawing from such treaties is shown by the case of the Democratic People’s Republic of Korea (DPRK) that attempted to terminate its being a state party to the ICCPR. The UN Secretary General received from the government of the DPRK on Aug. 25, 1997 a notification dated Aug. 23,1997 of withdrawal from the ICCPR. In his reply on Sept. 23, 1997 to the government of the DPRK, the Secretary General explains the legal position arising from the ICCPR’s not containing a withdrawal provision. The UN Secretary-General is of the opinion that a withdrawal from the covenant would not appear possible unless all states parties to the covenant agree with the withdrawal.
In the case of the Philippines, the 1987 Constitution abolished the death penalty for all crimes. During the Fidel V. Ramos administration, RA 7659 was signed in December 1993 reimposing the death penalty to address the rising criminality. But it is to be noted that in 1993 the Philippines was not a party yet to the Second Optional Protocol to the ICCPR (the Philippines signed on Sept. 20, 2006 and ratified on Nov. 20, 2007). The House of Representatives has approved the reinstatement of the death penalty despite the fact that the Philippines has been and now is a state party to the Second Optional Protocol.
Consequences of reinstatement
With the reinstatement, the Philippines will be violating the Vienna Convention on the Law of Treaties. With this close-open Philippine attitude with regard to the death penalty, our palabra de honor, or word of honor, will suffer in the eyes of the international community, with the following practical consequences:
– We may lose our credibility as a member of the international community. The world may be reminded of one of Aesop’s fables, “The Boy Who Cried Wolf,” about a shepherd boy who repeatedly tricks villagers into thinking a wolf is attacking his flock; when the wolf actually does appear and the boy again calls for help, the villagers think it is another false alarm and the sheep are eaten by the wolf.
– A rude alien from a foreign land may accuse the Philippines of ignoring the ICCPR and its Second Optional Protocol and throw at us the familiar Latin legal maxim “ignorantia legis non escusai” (ignorance of the law excuses no one). That maxim is Article 3 of our Civil Code of the Philippines, “Ignorance of the law excuses no one from compliance therewith.”
– Our Commission on Human Rights cites the worst consequence: “The reintroduction of the death penalty in any form in the Philippines will expose the Philippines to international ridicule and criticism as it breaches numerous rules of international law, including rules that it expressly and freely accepted in the free exercise of its sovereignty. Breach of international law by the Philippines in this context will undermine treaty commitments entered into by the Philippines. It will no longer be a respected member of the community of States.”
Hardliners softening
Based on current developments around the world, countries favoring the abolition of capital punishment are increasing and it appears that even the stand of hardliners on the issue is softening. In Africa, many human rights organizations observe that there is a trend in the continent of abolishing the death penalty in general, and in recent years many African countries have either abolished the death penalty or have put the use of it on moratorium. In Europe, many European countries abolished the death penalty a long time ago and abolition is a pre-condition for entry into the European Union (EU). The EU is the leading institutional actor and largest donor to the fight against the death penalty. In North and South America and in Oceania, most countries do not impose the death penalty; in the US, 21 out of 50 states plus the District of Columbia have abolished the death penalty and as of April 2019 the states of California, Pennsylvania, Colorado and Oregon have established official moratoriums on executions. In Asia, which is described as home to some of the world’s leading executioners, recent press reports say: The amended 2015 Penal Code of Vietnam will take effect at the start of 2018 and the death penalty on those found guilty of five felonies will no longer be imposed; in Iran, capital punishment has been abolished for some drug offenses and the head of the judiciary has said all cases on death row can be reviewed; Amnesty International (AI) reports that China remains the world’s top executioner, but the true extent of the use of the death penalty in China is unknown as this data is classified as a state secret. AI also reports that it recorded at least 690 executions in 20 countries in 2018, down by 31 percent from 2017.
With the above mentioned positive developments, the ultimate goal of the ICCPR’s Second Optional Protocol of total abolition of the death penalty worldwide may prove to be not an impossible dream after all.
A good number of Filipino senators have expressed opposition to the reimposition of the death penalty on the ground that the country is a signatory to the Second Protocol. They should be well aware of this fact belonging as they do to the chamber of Congress that under the Constitution concurs in the ratification of every treaty. A newly elected senator, however, who was the face of the Duterte administration’s war on drugs, said in a television interview that he was for reimposing the death penalty because a convicted foreign drug lord confessed to him that drug syndicates like to operate in the Philippines because unlike other countries in Southeast Asia, it does not have the death penalty. Are we to take the word of a criminal, or uphold the word of honor of the country that it will abolish the death penalty once and for all?