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1.1 The author of the
communication is Pagdayawon Rolando, a Filipino national, currently detained
at New Bilibid Prisons, Muntinlupa City. He claims to be a victim of
violations of article 5, paragraph 2, article 6 paragraphs 1 and 2, article
7, article 9 paragraphs 1, 2, 3 and 4, article 10, paragraph 1, and article
14 paragraphs 1, 2, and 5, of the Covenant. He is represented by counsel.
The Optional Protocol entered into force for the State party on 22 November
1989.
1.2 On 28 August 2002, the Human Rights Committee, through its Special
Rapporteur on New Communications, requested the State party, pursuant to
Rule 86 of its Rules of Procedure, not to carry out the death sentence
against the author whilst his case was before the Committee.
1.3 On 20 October 2003, following information to the affect that the State
party intended to execute the author, the Human Rights Committee, through
its Special Rapporteur on New Communications, reiterated its request,
pursuant to Rule 86 of its Rules of Procedure, not to execute the author
whilst his case is before the Committee.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 In September 1996, the author was arrested and detained at a police
station, without a warrant. He was told that he was being detained after
allegations made by his wife of the rape of his stepdaughter. Before, the
author was employed as a police officer. He requested to see his arrest
warrant and a copy of the formal complaint, but did not receive a copy of
either. He claims that he was not informed of his right to remain silent or
of his right to consult a lawyer, as required under Article III, section
12(1) of the Philippine Constitution of 1987. On 1 November 1996, he was
released. Throughout his detention, he was not brought before any judicial
authority, nor was he formally charged with an offence.
2.2 On 27 January 1997, he was arrested again and charged with the rape of
his stepdaughter Lori Pagdayawon, under article 335, paragraph 3, of the
Revised Penal Code, as amended. He claims that he was not informed of his
right to remain silent or his right to consult a lawyer. He also claims that
the first opportunity he had to engage a private lawyer was at the inquest.
The same lawyer represented him throughout the proceedings. On 27 May 1997,
the Regional Trial Court of Davao City found him guilty as charged and
sentenced him to death, as well as to pay the sum of 50,000 pesos to the
victim. [FN1] According to the author, the death penalty is mandatory for
the crime of rape; it is a crime against the person by virtue of Republic
Act No. 8353.
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[FN1] The judgment reads as follows: "The crime committed is statutory rape.
The penalty imposable, considering the circumstances of relationship being
present, is the supreme penalty of death. The court is left with no
alternative but to obey the mandate of the law in the imposition of the
penalty. In the language of the Supreme Court in People vs. Leo Echegaray,
G.R. No. 117472, June 25, 1996, "The law has made it inevitable under the
circumstances of this case that the accused-appellant face the supreme
penalty of death.""
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2.3 On 15 February 2001, under its automatic review procedure, the Supreme
Court affirmed the death sentence of the Trial Court but increased the
author's civil liability to 75,000 pesos and "an additional award of 50,000
pesos by way of moral damages." [FN2] According to the author, the Supreme
Court followed its usual practice of not hearing the testimony of any
witnesses during the review process, relying solely upon the lower courts'
appreciation of the evidence. It reiterated its position, established in
previous case law, [FN3] about the weight given to the testimony of young
women who make allegations of rape, by stating that "[t]he testimony of a
rape victim, who is young and of tender age, is credible and deserves full
credit, especially where the facts point to her having been the victim of a
sexual assault. Certainly would not make public the offence and, undergo the
trial and humiliation of a public trial if she had not in fact been raped."
According to the author, the only effective test which the court has laid
down to test the veracity of the alleged victim's allegation is the
willingness of the victim to submit herself to a medical examination and
endure the ordeal of court proceedings.
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[FN2] The Supreme Court stated that the author was sentenced under section
11 of Republic Act No. 7659, which states inter alia that "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 with the third civil degree, or the
common-law spouse of the parent of the victim............". The court stated
that "The qualifying circumstances of minority and relationship that would
warrant imposition of the death penalty were specifically alleged and
proven."
[FN3] People v. Tao, G.R. No. 133872, 5 May 2000; People v. Amigable, G. R
No. 133857, 31 March 2000; People v. Sampior, G. R No. 117691, 1 March 2000.
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2.4 The author describes the procedure set out in paragraph 7(a) of EP 200,
issued by the Bureau of Corrections pursuant to Republic Act 8177, for his
execution. It provides that the condemned individual shall only be notified
of the execution date at dawn on the date of execution and that the
execution must take place within 8 hours of the accused being so informed.
No provision is made for notifying the family of the condemned person. The
only contact that the accused may have is with a cleric or with his lawyer.
Contact can only take place through a mesh screen.
THE COMPLAINT
3.1 The author claims that his initial detention was illegal and in
violation of article 9, paragraphs 1, 2, 3 and 4. He claims that the failure
to grant him access to a lawyer during this first period in detention
amounts to a violation of article 14, paragraph 1, as it reduced his chances
of receiving a fair trial.
3.2 The author claims that the Supreme Court's position, reiterated in the
present case, to accept the rape victim's testimony as being true per se,
constitutes a violation of the his right to be presumed innocent and equal
before the courts, in accordance with article 14, paragraph 2. It also is
said to constitute a violation of the equality clause of article 14,
paragraph 1, as well as his right to a fair trial. It is submitted that the
court's failure to observe the author's right to be presumed innocent and to
"effectively reverse the burden of proof in favour of the prosecution"
demonstrates a manifest violation of the obligation of impartiality on the
part of the judge. He argues that, as the same position was adopted in this
case by the Regional Trial Court the presumption of innocence was no longer
effective and the author did not receive a fair trial.
3.3 The author adds that the Supreme Court's practice not to hear the
testimony of any witnesses during the review process and therefore relying
upon the lower courts' appreciation of the evidence, amounts to a failure to
undertake a review within the meaning of article 14, paragraph 5, of the
Covenant. In this current case one of the author's arguments to the Supreme
Court was that the trial court erred in weighting the testimony of Lori
Pagdayawon. In his view, in order to have undertaken an adequate review, the
Supreme Court should hear the victim to test the veracity of her testimony.
3.4 The author claims that the extension of the death penalty to crimes such
as rape by virtue of the 1997 Republic Act No. 8353 violates the State
party's obligation to restrict the death penalty to the "most serious
crimes", in accordance with article 6. He argues that according to the
ECOSOC 1984 resolution on the "safeguards guaranteeing the protection of
rights and freedoms of those facing the death penalty" adopted in 1984, the
phrase "most serious crimes" must be understood as crimes not going beyond
intentional crimes with lethal or other extremely grave consequences. [FN4]
The author refers to the growing international consensus against the death
penalty and the fact that the statues of the International Criminal Tribunal
for the Former Yugoslavia, he International Criminal Tribunal for Rwanda,
and the International Criminal Court make no provision for the application
of the death penalty.
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[FN4] Resolution 39/118 of 14 December 1984.
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3.5 He claims that if he were to be put to death, the procedure for
executions in force in the Philippines, as set out in document EP 200, in
which he would only be given a maximum of eight hours notice prior to
execution, makes no provision to enable him to say his final farewell to
family members, and only provides contact with his lawyer and cleric through
a mesh screen, would subject him to inhuman and degrading punishment, and
fail to respect the inherent dignity of the human person, guaranteed by
articles 7 and 10, paragraph 1, of the Covenant. The author contends that
such treatment is psychological/mental torture similar to the "death row
phenomenon".
3.6 The author adds that by reintroducing the death penalty for "heinous
crimes", as set out in RA 7659, the State party violated article 6 of the
Covenant. He argues specifically that paragraphs 1, 2 and 6 of article 6 if
read together, support the conclusion that once a State has abolished the
death penalty, it is not open to that State to reintroduce it. Further an
"extensive interpretation" of article 5, paragraph 2, of the Covenant which
would allow a State party to reintroduce the death penalty would run counter
to this provision.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
4.1 The communication with its accompanying documents was transmitted to the
State party on 28 August 2002. The State party did not respond to the
Committee's request, under rule 86/91 of the rules of procedure, to submit
information and observations in respect of the admissibility and merits of
the communication, despite several reminders addressed to it. The Committee
recalls that it is implicit in article 4, paragraph 2, of the Optional
Protocol that a State party examine in good faith all the allegations
brought against it, and that it provide the Committee with all the
information at its disposal. In light of the failure of the State party to
cooperate with the Committee on the matter before it, due weight must be
given to the author's allegations, to the extent that they have been
adequately substantiated.
4.2 Before considering the claims contained in the communication, the Human
Rights Committee must, in accordance with rule 87 of the rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
4.3 The Committee has ascertained, as required under article 5, paragraph 2
(a), of the Optional Protocol, that the matter is not being examined under
another procedure of international investigation or settlement. With respect
to the requirement of exhaustion of domestic remedies, the Committee notes
that the State party has not claimed that there are any domestic remedies
that could be exhausted by the author.
4.4 As to the claim that the author was denied the right to be presumed
innocent, in accepting the testimony of the minor victim, the Committee
notes that on a review of the judgments of the Regional Trial Court and the
Supreme Court, the judiciary did take the minor victim's age into account in
assessing her testimony and did consider that a rape trial is of such an
ordeal that it would be unlikely to institute such proceedings if a rape in
fact had not occurred. However, these were not the only considerations
addressed by the Regional Trial Court and the Supreme Court. Both courts
took into account, inter alia, medical evidence and witness statements in
the evaluation of the facts and evidence in the case. The Committee has also
noted the statement, in the judgment of the Regional Trial Court, which
confirms that "on the whole, the evidence for the prosecution has overcome
the accused's constitutional presumption of innocence. The prosecution has
established the guilt of the accused beyond reasonable doubt. The evidence
of the accused, consisting merely of denial, did not overcome the probative
weight of the prosecution's evidence which established his guilty beyond
reasonable doubt." The Committee reiterates its jurisprudence [FN5] that the
evaluation of facts and evidence is best left for the courts of States
parties to decide, unless the evaluation of facts and evidence was clearly
arbitrary or amounted to a denial of justice. As the author has provided no
evidence to demonstrate that the courts' decisions were clearly arbitrary or
amounted to a denial of justice, the Committee considers this claim
inadmissible under article 2, of the Optional Protocol for
non-substantiation for purposes of admissibility. For these reasons, the
Committee concludes that this claim is inadmissible.
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[FN5] Ramil Rayos v. The Philippines, Case No. 1167/2003, Views of 27 July
2004.
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4.5 As to the author's claim that his rights were violated under article 14,
paragraph 5, as the Supreme Court did not hear the testimony of the
witnesses but relied on the first instance interpretation of the evidence
provided, the Committee recalls its jurisprudence that a "factual retrial"
or "hearing de novo" are not necessary for the purposes of article 14,
paragraph 5. [FN6] Accordingly, this part of the communication is therefore
inadmissible as incompatible with the provisions of the Covenant, under
article 3 of the Optional Protocol.
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[FN6] Perera v. Australia, Case No. 536/93, and H.T.B. v. Canada, Case No.
534/1993.
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4.6 The Committee finds the remaining claims raised by the author to be
admissible and therefore proceeds to a consideration of the merits of the
claims relating to articles 6, 7; 10, paragraph 1; 9 and 14, paragraph 3
(d), of the Covenant.
CONSIDERATION OF THE MERITS
5.1 The Human Rights Committee has considered the present communication in
light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
5.2 The Committee notes from the judgments of both the Regional Trial Court
and the Supreme Court, that the author was convicted of statutory rape under
Article 335 of the Revised Penal Code, as amended by Section 11 of Republic
Act No. 8353 (see footnote 2 below), which provides that "[t]he death
penalty shall 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............." Thus, the death
penalty was imposed automatically by operation of article 335 of the Revised
Penal Code, as amended. The Committee recalls its jurisprudence that the
automatic and mandatory imposition of the death penalty constitutes an
arbitrary deprivation of life, in violation of article 6, paragraph 1, of
the Covenant, in circumstances where the death penalty is imposed without
any possibility of taking into account the defendant's personal
circumstances or the circumstances of the particular offence. [FN7] It also
notes that rape, under the law of the State party is a broad notion and
covers crimes of different degrees of seriousness. It follows that the
automatic imposition of the death penalty in the author's case, by virtue of
the application of article 335 of the Revised Penal Code, as amended,
violated his rights under article 6, paragraph 1, of the Covenant.
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[FN7] Thompson v. St. Vincent & The Grenadines, Case No. 806/1998, Views of
18 October 2000; and Kennedy v. Trinidad & Tobago, Case No. 845/1998, Views
of 26 March 2002, Carpo v. The Philippines, Case No. 1077/2002, Views of 6
May 2002.
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5.3 In light of the above finding of a violation of article 6 of the
Covenant, the Committee need not address the author's remaining claims under
paragraphs 1, 2 and 6 of article 6, which all concern the imposition of
capital punishment in this case.
5.4 The Committee notes the author's claims of violations under articles 7
and 10, paragraph 1, on account of the fact that he would not be notified of
the date of his execution until dawn of the day in question, whereupon he
would be executed within 8 hours and would have insufficient time to bid
farewell to family members and organise his personal affairs. It further
notes the State party's contention that the death sentence shall be carried
out "not earlier than one (1) year nor later than eighteen (18) months after
the judgment has become final and executory, without prejudice to the
exercise by the President of his executive clemency powers at all times."
[FN8] The Committee understands from the legislation that the author would
have at least one year and at most eighteen months, after the exhaustion of
all available remedies, during which he may make arrangements to see members
of his family prior to notification of the date of execution. It also notes
that, under Section 16 of the Republic Act No. 8177, following notification
of execution he would have approximately eight hours to finalise any
personal matters and meet with members of his family The Committee
reiterates its prior jurisprudence that the issue of a warrant for execution
necessarily causes intense anguish to the individual concerned and is of the
view that the State party should attempt to minimise this anguish as far as
possible. [FN9] However, on the basis of the information provided, the
Committee cannot find that the setting of the time of the execution of the
author within eight hours after notification, considering that he would
already have had at least one year following the exhaustion of domestic
remedies and prior to notification to organize his personal affairs and meet
with family members, would violate his rights under articles 7, and 10,
paragraph 1.
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[FN8] Section 1, Republic Act No. 8177.
[FN9] Pratt and Morgan v. Jamaica, Case no. 210/1986 and 225/1987, Views
adopted on 6 April 1989.
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5.5 As to the author's claims under article 9, in light of the State party's
failure to contest the factual submissions of the author, the Committee
concludes that, upon arrest in September 1996, the author was not informed,
at the time of arrest, of the reasons for his arrest and was not promptly
informed of the charges against him; that the author was arrested without a
warrant and hence in violation of applicable domestic law; and that after
his arrest, he was not brought promptly before a judge. Consequently, there
has been a violation of article 9, paragraphs 1, 2 and 3, of the Covenant.
5.6 As to the author's uncontested claim that he did not have access to a
lawyer during his initial period of detention, and that during both periods
of detention, he was not informed of his right to legal assistance, the
Committee finds a violation of article 14, paragraph 3(d), of the Covenant.
6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts as found by the Committee reveal a
violation by the Philippines of articles 6, paragraphs 1, 9, paragraphs 1, 2
and 3 and 14, paragraph 3(d) of the International Covenant on Civil and
Political Rights.
7. Pursuant to article 2, paragraph 3 (a) of the Covenant, the Committee
concludes that the author is entitled to an appropriate remedy including
commutation of his death sentence. The State party is under an obligation to
avoid similar violations in the future.
8. Bearing in mind that, by becoming a State party to the Optional Protocol,
the State party has recognised the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that, pursuant
to article 2 of the Covenant, the State party has undertaken to ensure to
all individuals within its territory and subject to its jurisdiction the
rights recognised in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established, the Committee
wishes to receive from the State party, within 90 days, information about
the measures taken to give effect to its Views. The Committee is also
requested to publish the Committee's Views.
___________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
The text of two individual opinions signed by Committee members Mr. Martin
Scheinin, Ms. Christine Chanet, Mr. Rajsoomer Lallah, Ms. Ruth Wedgwood and
Mr. Nisuke Ando.
INDIVIDUAL OPINION BY COMMITTEE MEMBERS, MR. MARTIN SCHEININ, MS. CHRISTINE
CHANET AND MR. RAJSOOMER LALLAH (PARTLY DISSENTING)
We are in full support of the Committee's finding of a violation of article
6, paragraph 1, of the Covenant, due to categorization of the author's
mandatory death penalty as arbitrary deprivation of life. In this respect,
the case affirms and builds upon the Committee's earlier case law, as
established in Thompson v. St. Vincent and the Grenadines (Communication No.
806/1998), Kennedy v. Trinidad and Tobago (Communication No. 845/1998),
Carpo et al. v. the Philippines (Communication No. 1077/2002) and Ramil
Rayos v. the Philippines (Communication No. 1167/2003).
However, we dissent in respect of paragraph 5.3 of the Views where the
Committee concluded that it need not address the author's other claims
related to article 6. Although the majority also here follows the
Committee's earlier Views in Carpo, decided on 28 March 2003, we are of the
opinion that the time has come to address the question of the compatibility
with article 6 of the reintroduction of capital punishment in a country that
once abolished it. Since the decision in Carpo - in which we participated -
two important developments have taken place, on the basis of which the issue
now is in our view ripe for assessment by the Committee.
Firstly, in October 2003 the Committee considered the second periodic report
by the Philippines, in which context the issue of capital punishment was
addressed from various perspectives and the Committee's understanding of the
law and practice of the State party was greatly enhanced (See, the State
party report CCPR/C/PHL/2002/2, the Committee's summary records CCPR/C/SR.2138,
2139 and 2140, and the Committee's Concluding Observations CCPR/CO/79/PHL),
Secondly, already in the next session after the disposal of the Carpo case,
the Committee addressed the compatibility with article 6 of the
reintroduction of capital punishment, once abolished. This was done in the
case of Roger Judge v. Canada (Communication No. 829/1998), decided on 5
August 2003, where the Committee held that Canada, despite having abolished
capital punishment, violated article 6 by deporting the author of the
communication to another country where he would face the risk of the death
penalty. It is to be pointed out that the finding was not made on the basis
that Canada was a party to the Second Optional Protocol, which it is not,
nor on the basis that the author would risk a violation of article 6 in the
receiving country. The issue was whether exposing a person to the risk of
facing capital punishment in another country was per se in violation of
article 6 when done by an abolitionist country.
The answer given by the Committee was affirmative:
'10.4 In reviewing its application of article 6, the Committee notes that,
as required by the Vienna Convention on the Law of Treaties, a treaty should
be interpreted in good faith and in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its
object and purpose. Paragraph 1 of article 6, which states that "Every human
being has the inherent right to life...", is a general rule: its purpose is
to protect life. States parties that have abolished the death penalty have
an obligation under this paragraph to so protect life in all circumstances.
Paragraphs 2 to 6 of article 6 are evidently included to avoid a reading of
the first paragraph of article 6, according to which that paragraph could be
understood as abolishing the death penalty as such. This construction of the
article is reinforced by the opening words of paragraph 2 ("In countries
which have not abolished the death penalty...") and by paragraph 6 ("Nothing
in this article shall be invoked to delay or to prevent the abolition of
capital punishment by any State Party to the present Covenant."). In effect,
paragraphs 2 to 6 have the dual function of creating an exception to the
right to life in respect of the death penalty and laying down limits on the
scope of that exception. Only the death penalty pronounced when certain
elements are present can benefit from the exception. Among these limitations
are that found in the opening words of paragraph 2, namely, that only States
parties that "have not abolished the death penalty" can avail themselves of
the exceptions created in paragraphs 2 to 6. For countries that have
abolished the death penalty, there is an obligation not to expose a person
to the real risk of its application. Thus, they may not remove, either by
deportation or extradition, individuals from their jurisdiction if it may be
reasonably anticipated that they will be sentenced to death, without
ensuring that the death sentence would not be carried out.' (emphasis added)
To any reader familiar with the issue of capital punishment, it is clear
that the Committee in the quoted paragraph decided not only its position in
respect of "indirect" reintroduction of capital punishment, where an
abolitionist country sending someone to face the death penalty in another
country, but also what comes to direct reintroduction by allowing in its own
law for the death penalty after first abolishing it.
Hence, the legal issue of whether reintroduction of capital punishment after
once abolishing it is in breach of article 6 has been clarified after the
adoption of the Committee's Views in Carpo. What remains undecided is the
factual issue whether the constitutional and legislative changes made in the
Philippines in 1987 amounted to the abolition of capital punishment. This is
the issue that could - and in our view should - have now been addressed by
the Committee. The majority of Committee members considered that there was
no need to address the issue in the current case, without discussing its
merits.
The Covenant entered into force in respect of the Philippines on 23 January
1987 without any reservations. From that date onwards it was bound by the
full spectrum of obligations that stem from article 6 of the Covenant.
Immediately on 2 February 1987, a new Constitution took effect following
approval by the people consulted by plebiscite. That Constitution, in
article 3(19)(1), removed the death penalty from the applicable law of the
land in the following terms:
"Executive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall the 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."
From 1987 to 1993, the legal order of the Philippines did not include a
possibility to sentence a person to death, or even the institution of
capital punishment. Hence, the situation was different from a mere
moratorium where capital punishment remains in the law in books but its
application is suspended in practice. On 13 December 1993, the Philippine
Congress, by way of Republic Act No. 7659, adopted new legislation that
again included the death penalty for a number of crimes. As is clear from
the above-quoted provision of the Constitution, capital punishment could be
brought back to application only through new legislative decision. Such
decision was taken in 1993, and although the constitutionality of the
measure was contested, it was, for the purposes of domestic constitutional
law, as distinct from compliance with the Covenant, upheld by the Supreme
Court in the case of People v Echegaray (GR No 117472, judgment of 7
February 1997). In this ruling the Supreme Court, by a majority, held that
new laws authorising capital punishment were not unconstitutional. A part of
the majority's reasoning was:
'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 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."'
What is clear to us on the basis of this and other passages of the ruling is
that the Supreme Court's assessment was limited to the domestic
constitutional issue and did not extend to the question whether the
enactment of the 1987 Constitution amounted to an abolition in the meaning
of article 6, paragraph 2, of the Covenant, and what would be the
consequences under the Covenant if it did. Nevertheless, we find it proper
to quote also a particularly articulate minority opinion, also written in
the framework of domestic constitutional law rather than international law:
"... 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 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.'
In the above description of the sequence of events we have avoided
expressing a position as to whether what happened in the Philippines in 1987
amounted to an abolition of the death penalty in the sense of article 6,
paragraph 2, of the Covenant. It is now time to answer that question.
As the Committee notes in paragraph 4.1 of its Views in the current case,
the Philippines has not furnished the Committee with any submissions in
response to the communication. This is of course regrettable but cannot
prevent the Committee from establishing the facts in the light of the
material it has in its possession.
In our view the distinction between abolition and a moratorium is decisive.
In 1987 the Philippines removed capital punishment from it legal order, so
that no provision of criminal law included a possibility to sentence any
person to death. The death penalty could not be applied on the basis of the
reference to it in the Constitution. On the contrary, the Constitution
itself made it very clear that capital punishment had been removed from the
legal order, i.e., abolished. The fact that the Constitution came to include
a kind of domestic reservation, meaning that not every form of reintroducing
capital punishment would be unconstitutional, has no relevance for the
substantive contents or application of article 6 of the Covenant as an
international treaty.
Hence, our conclusion is that, for purposes of article 6, paragraph 2, of
the Covenant, the Philippines abolished capital punishment in 1987 and
reintroduced it in 1993. Subsequent to that, the author of the current
communication was sentenced to death. This constituted, in our view, a
violation of article 6 of the Covenant. This violation is separate from and
additional to the violation of article 6 established by the Committee on the
basis of the mandatory nature of the death sentence.
Our conclusion is supported by the State party's own arguments submitted to
the Committee in the earlier Carpo case. Although the State party failed to
cooperate with the Committee in the current case, it is of relevance now
that before the Committee's disposition of Carpo, the State party argued as
follows:
(1) 'That the Philippines, under the 1987 Constitution, had decided to
abolish it [the death penalty] did not disable its legislature from again
imposing such a penalty for the Constitution itself allows for its
imposition.'
(2) '... the constitutionality of the death penalty law is a matter for the
State party to decide. The Committee is not empowered to interpret the
constitution of a State party for purposes of determining whether such State
party is complying with its obligations under the Covenants.'
(3) Article 6, paragraph 2, of the Covenant 'does not refer to countries
that have once abolished the death penalty: it simply refers to countries
that have existing death penalty statutes'.
Statement (1) is correct as a matter of Philippino constitutional law but at
the same time amounts to an admission that the sequence of events should be
categorised as abolition followed by reintroduction. Statement (2) is
technically correct but does not affect the Committee's competence to
interpret article 6 of the Covenant. Statement (3) is manifestly incorrect
in the light of the opening words of article 6, paragraph 2: 'In countries
that which have not abolished the death penalty, sentence of death may be
imposed...'
Over the more than 25 years of its existence, the Human Rights Committee has
developed singularly important jurisprudence on the issue of the right to
life and its effect of narrowing down any application of capital punishment.
Although it is clear that the drafters of the Covenant could not reach
agreement about outlawing capital punishment, they nevertheless included in
the detailed provisions of article 6 a number of restrictions on the
application of this ultimate punishment which many states, supreme or
constitutional courts in various parts of the world, eminent jurists,
academics and members of the general public regard as inhuman. Through a
rigorous application of the various elements of article 6 the Committee has
in its jurisprudence managed to develop international scrutiny over the
application of the death penalty without, however, reading a total ban
against it into article 6. Some of the most important dimensions of this
voluminous jurisprudence relate to the effect of a violation of the right to
a fair trial in proceedings leading to capital punishment constituting not
only a violation of article 14 but also of article 6, to the categorization
of mandatory death penalty for a broadly defined crime as arbitrary
deprivation of life, to the scope of the notion of "most serious crimes" in
paragraph 2 of article 6 and, in Judge, to the issue of indirect
reintroduction of capital punishment through an abolitionist country
deporting a person to face a risk of it elsewhere, as violations of article
6. Furthermore, with reference to article 7 of the Covenant, the Committee
has also decided that certain forms of execution, as well as prolonged stay
on death row if accompanied by "further compelling circumstances",
constitute violations of the Covenant. All this jurisprudence has, together
with the exclusion of certain categories of persons from capital punishment
in the text of article 6, in effect narrowed down any use of capital
punishment. It may well be that one day the Committee will find sufficient
grounds to conclude that in the light of evolving public opinion, state
practice and case law from various jurisdictions, any form of execution
constitutes an inhuman punishment in the meaning of article 7.
Future cases will show whether this will indeed be the line of further
evolution in the Committee's jurisprudence. Be it as it may, in our view the
Committee should in the current case have followed its interpretation
already expressed in Judge and addressed the question whether the
Philippines violated article 6 by reintroducing capital punishment in 1993,
after abolishing it in 1987. As explained above, our answer is affirmative.
[Signed] Martin Scheinin
[Signed] Christine Chanet
[Signed] Rajsoomer Lallah
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
INDIVIDUAL OPINION OF COMMITTEE MEMBERS MS. RUTH WEDGWOOD AND MR. NISUKE
ANDO
Consistent with our separate opinions in Carpo v. Philippines, Case No.
1077/20002, 6 May 2002, we are unable to join in paragraph 5.2 of the
Committee's Views. In addition, we do not agree with the dissenting views of
Mr. Scheinin, Ms. Chanet, and Mr. Lallah in this case. The Committee has
never suggested, and does not suggest in this case, that a state party
should be thwarted in its reform of penalty provisions by an expansionist
reading of Article 6(2) of the Covenant. The state party here has amended
its national constitution to limit the death penalty to "heinous offenses"
and has accordingly rewritten its criminal statutes. This was a good-faith
attempt to abide by the Covenant obligation to use the death penalty "only
for the most serious crimes." Protocol II of the Covenant provides a
separate modality for those states willing to abolish the death penalty in
all cases. It would only discourage amelioration of penalty provisions to
suggest that even a temporary suspension during a period of legislative
reform should prohibit a narrowed application of the death penalty. Such a
reading is not supported by the language or travaux preparatoires of Article
6(2), and would defeat the very ends its proponents seek.
[Signed] Ruth Wedgwood
[Signed] Nisuke Ando
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
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