ON THE RE-IMPOSITION OF DEATH PENALTY

To re-impose or not to re-impose the ultimate penalty of death, that is the question that the whole nation is now facing.

Allow me to lay down a birds-eye view on this issue.

Proponents of the re-imposition of death penalty in essence rely on two grounds for its justification:

1. The need for a deterrent to end the rising rate of criminality (heinous crimes);

2. retribution on the belief that it is a requirement for justice to be satisfied.

In disagreement to this proposal we the opponents rely on a number of grounds that ranges from moral, legal and practical positions.

Thus we subscribe to Pope Francis’ declaration that the “inviolability of life extends to the criminal”. On the other hand we put to light the legal infirmity of House Bill No. 4727 as it fails to comply with the requirements of the Constitution before death penalty maybe re-imposed.

This representation on the other hand, would want to focus on the practical position that our criminal justice system is flawed and is not ready for the re-imposition of the death penalty.

To quote Congressman Edcel Lagman, “while no time is right and ripe for pushing for the reimposition of the death penalty, now is the worst of time to enact the revival of capital punishment”

So that even granting that the proponents of death penalty are correct in claiming that it is a deterrent which it is not) or that retribution is an indispensable element of criminal justice (which again, it is not) still we cannot re-impose the death penalty now.

The finality of death demands that.

Consequently, because of the irreversible nature of the death penalty, once implemented, we cannot afford to make mistakes. An error in its imposition will result in double injustice. First, the victim will not have his or her closure of having the ones responsible for the crime punished and second, we put to death an innocent man. We definitely cannot afford to make mistakes.

Yet, we do commit mistakes.

No less than the Supreme Court in People vs Mateo (SC GR No. 147678-87 Jul. 7, 2004) admits that 71.77 percent of decisions of the trial courts meting out death penalty were erroneous. In a scale of ten, only three are correct seven were wrong.

And we don’t only commit mistakes but we have a judicial system where between 2012 to 2016, 16 judges and 1 Sandiganbayan justice were dismissed for acts unbecoming of officers of the court. In the same period 14 judges were suspended, 101 fined, 21 reprimanded and 31 were admonished.

Since 2010, 116 court personnel were dismissed, 227 were suspended, 240 were fined, 31 had their benefits forfeited, 221 reprimanded, 42 were admonished, and 3 were censured.

Now should we take comfort that the high court was able to correct these erroneous decisions and that these misfits in the judiciary were found and penalized? Surely not. The fact that so much corrections had to be made and numerous dismissals and suspensions had to be meted out only shows that there is a patent or manifest flaw in our judicial system.

This flaw is conducive to sending an innocent person to the gas chamber.

Any self-respecting lawyer knows that the best venue to determine the truth is with the trial courts. This is so as the trial judge is in the position to personally observe the demeanor of witnesses. This is important because criminal cases are invariably decided on the basis of testimonial evidence. If our trial courts having this advantage still commit substantial number of errors what more with the higher courts that in review will rely only on TSNs or transcript of stenographic notes.

What has been shown so far are the shortcomings of the judiciary which is only one 5 pillars of the criminal justice system. The rest of the pillars are composed of: the community, law enforcement, the prosecution, the courts, and corrections. They function like links to form a chain.

I will not endeavor to emphasize the role of the community in fighting crimes. But allow me to state that we need to change our values. Let me give an example of our convoluted sense of values. If a corrupt government official is able to escape prosecution we would say: “bilib talaga ako sa taong ito. Ang galing.” In a more civilized society if you are known to have stolen 1 peso from the coffers of the government no one will invite you to dinner.

How about the second pillar, the law enforcement arm? What is the state of our law enforcement agencies? The killing of a Korean national involving our own police officers that happened at the very seat of our main enforcement agency, the PNP, speaks for itself.

There is also its inability to enforce the law on account of lack of logistical support and training. In frustration they tend to go for shortcuts and quick fixes. Thus, extrajudicial killings and evidence planting exist.

In my experience as a public prosecutor for 24 years I can state for a fact that 60% or more of drug cases are trumped up and based on planted evidence. In my stint as a prosecutor in Cebu City I was the first to convict a so called “drug queen” only to find out from my witnesses later that the evidence was planted. When I told the judge of this fact, he said “that was the evidence given to you by the police and that was the evidence you presented to me we cannot be more popish than the pope”. True, a target for evidence planting could really be involved in the drug trade. But planting evidence runs counter to the basic tenet of our justice system that a person is presumed innocent until proven otherwise. This principle is anathema to the re-imposition of death penalty.

On the third pillar, the prosecution. As shown earlier prosecutors are dependent on evidence gathered by the law enforcement agencies. These are evidence that from my experience and as exemplified earlier, leave much to be desired. This is just one of a number of areas for improvement in the prosecution arm. To alleviate this issue the prosecution arm should be complemented by an in-house investigating force that gathers additional or more competent evidence.

Having already discussed shortcomings in the judiciary let me proceed to the fifth and last pillar of our criminal justice system, the correctional services. Again we need not belabour on the poor state of our prison system. It is argued that with mere imposition of life imprisonment the convict will not truly be made to answer for his crime as our detention facilities allow him to enjoy the amenities of the world outside. I say in reply, that it is not the penalty but the implementation of the law that is wanting.

It is therefore evident there that there is a serious flaw in our justice system and that there is a need to address the same. No less than death penalty proponent Congressman Rey Umali said and I quote;

“What we have is a system wide problem as we are already knee-deep into the quicksand. Instead of doing piece meal legislative measures, what we need is to reengineer the criminal justice system of the Philippines. We need a comprehensive and holistic approach in addressing the problems of our criminal justice system.”

By first addressing this issue we then likewise address this perceived rise in criminality. A competent criminal justice system is the best deterrent to criminality because it assures certainty of arrest, prosecution, conviction and service of sentence.

Granting without admitting that the reimposition of death penalty is an option to deter criminality, a competent justice system is as well recourse to quell criminality.

Death is the ultimate form of penalty and should not be resorted to when there is another option.

This fact goes into the legality of the bill under consideration. When the Constitution requires “compelling reason” to re-impose death penalty it means it is compelling as there is no other recourse to address the issue. But we now see that reengineering our judicial system is indeed an option.

Let me restate my query. Are we morally certain that our criminal justice system can handle the re-imposition of the death penalty?

Again for reasons stated I say it is not. For us to re-impose death penalty whether mandatory or optional would be like handing a child a match box to play with when we know he is incapable to handle fire.

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