REIMMPOSITION OF DEATH PENALTY: A CHALLENGE TO THE PILLARS OF JUSTCE SYSTEM

I. History
II. Proposed reactivation
III. Pillars vis a vis reactivation
IV. Care- Family as the basic unit of community

I. The death penalty in the Philippines was first abolished in 1987, making the
Philippines the first country in Asia to terminate death penalty. Yet, in less than a
year, with the promulgation of a new Constitution after the ouster of the Marcos
dictatorship, the military establishment lobbied for its imposition to comba; the
alleged intensifying offensives of the Communist Party of the Philippines/New
People’s Army guerillas.

In mid-1987, a bill to reinstate the death penalty was submitted to Congress, citing recent
right-wing coup attempts as example of the alarming deterioration of peace and order. In
1988, the House of Representatives passed the bill that was being promoted as a
counterinsurgency bill. When an ex-military officer, Gen. Fidel Ramos, was elected
president in 1992, Republic Act 7659 restoring the death penalty was signed into law.
Political offenses, such as rebellion, were dropped from the bill; however, the list of crimes
was expanded to include economic offenses such as smuggling and bribery. In 1996, RA
8177 was approved, stipulating lethal injection as the method of execution. Six years after its
reimposition, the number of death-penalty convicts increased—indicating that the death
penalty is not a deterrent to criminality. Certain studies cite statistics indicating that there are
no signs that criminality has gone down with the reimposition of the death
penalty (http://www.phlsol.nl/AOOa/Pahra-death-penalty-maroo.htm):

1) From 1994 to 1995 the number of persons on death row increased from 12 to 104. From
1995 to 1996 it increased to 182. In 1997 the number of death convicts was at 520, and in
1998 the number of inmates in death row was at 781. As of November 1999 there were a
total of 956 death convicts at the National Bilibid Prisons and at the Correctional Institute
for Women.

2) As of December 31, 1999, based on the statistics compiled by the Episcopal Commission
on Prisoner Welfare of the Catholic Bishops Conference of the Philippines, there were a
total of 936 convicts interned at the National Bilibid Prisons and another 23 detained at the
Correctional Institute for Women. Of these figures, six are minors and 12 are foreigners.

3) A review of death-penalty cases made by the Supreme Court from 1995 to 1999 indicated
that two out of every three death sentences handed down by the local courts were found to

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be erroneous by the Supreme Court. Out of the 959 inmates the SC reviewed, 175 cases were
reviewed from 1995 to 1999; three cases were reviewed in 1995, eight in 1996, eight in
1997, 38 in 1998 and 118 in 1999. Of the 175 cases, the SC affirmed with finality and first
affirmation only 31 percent or 54 cases involving 60 inmates. Of these cases, 24 were
affirmed with finality, while the remaining 36 were given first affirmation. Sixty-nine
percent or 121 cases were either modified, acquitted or remanded for retrial.

4) A study prepared by the Free Legal Assistance Group (FLAG) on the results of the review
of cases done by the Supreme Court “point all too clearly to the imperfections, weaknesses
and problems of the Philippine justice system.” Some decisions of the trial courts were
overturned for imposing death penalty on offenses that were not subject to death penalty.
Other decisions of the lower courts were set aside because of substantive and procedural
errors during arraignment and trial. Still others were struck down because the lower court
misappreciated evidences.

5) Data from the Catholic Bishops Conference of the Philippines showed that in 1998 more
than half of the convicts earned less than the government-mandated minimum wage. In a
survey conducted among 425 convicts in 1998, 105 or 24.7 percent were agricultural
workers, 103 were construction workers, 73 were transport workers, and 42 were workers in
sales and services. Only 6 percent finished college, while 32.4 percent finished various
levels of high school, while the remaining convicts did not go to school or have finished
only elementary or vocational education.

On June 24, 2006, then-President Gloria Macapagal-Arroyo, apparently giving in to the call
of the Catholic Church, signed into law RA 9346, “An Act Prohibiting the Imposition of
Death Penalty in the Philippines.” All crimes punishable by death were commuted to life
imprisonment (reclusion perpetua).

Mayor Rodrigo Duterte, then candidate for president, said in one of the presidential debates
that he wants capital punishment for criminals involved in illegal drugs, gun-for-hire
syndicates and those who commit “heinous crimes,” such as rape, robbery or car theft where
the victim is murdered. He vowed “to litter Manila Bay with the bodies of criminals.” Sen.
Grace Poe then also stated that the capital punishment should apply to criminals convicted of
drugs and multiple crimes where involved people can no longer be rehabilitated.

II. Following the election of Mayor Duterte as president, a bill to reinstate capital
punishment for certain heinous offenses was swiftly reported out of the Justice
Committee into the full House of Representatives in February 2017. The death
penalty bill died in the Senate.
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The recent surge in heinous crimes—terrorist bombings, drug trafficking, plunder, rape,
murders, extrajudicial killings, smuggling, kidnaping for ransom, gun for hire —has opened
the discussion on reinstating the death penalty. Tabloids, which widely publicize horrific
crimes in the front pages, reinforce public fears that lawlessness and criminality have
reached unprecedented levels. Certain senatorial candidates (e.g., Raffy Alunan, Harry
Roque) in a recent CNN debate indicated a “Yes” vote for the restoration of death penalty.

III. Philippine Criminal Justice System is based on five pillars, namely: law
enforcement, prosecution, courts, corrections, and the community (Bernardo R.
Calibo, Editor-in-Chief, Criminal Justice Journal; Criminal Justice System,
National Police Commission pamphlet, p. 1).

Law enforcement controls arrest and booking; prosecution controls preliminary investigation and
filing of informations; courts control arraignment, trial, sentencing, probation, suspended sentence and
appeal; corrections control incarceration in jail, parole, pardon and the serving of sentence; the community,
represented by the non-government organizations and people’s organizations, contribute to the prevention
of crime and delinquency.

* Paper presented by Mr. N. C. Mariano, Assistant Chief State Prosecutor, the Philippines

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 The first pillar is the law enforcement pillar. It consists mainly of the officers and men of the
Philippine National Police (PNP), the National Bureau of Investigation (NBI) and other law enforcement
agencies. Their work consists in the prevention and control of crimes, enforcement of laws and effect the
arrest of offenders, including the conduct of lawful searches and seizures to gather necessary evidence so
that a complaint may be filed with the Prosecutor’s office.

The NBI is an agency of the DOJ. It serves as a main artery through which programs and services
instituted by the Department are delivered to the people. Though the NBI has its own specialized line of
function which involves scientific criminal investigation, the guiding principle of democratized and
humanized society which is the yardstick by which the DOJ operates, is incorporated in its program and
services.

The territorial jurisdiction of the NBI is national in scope and extends to all cities and provinces of
our country. It is empowered to investigate criminal cases upon its own initiative. The only limitations or
exceptions are those provided or may be provided by pertinent laws and policies. Its various specialized
units deal, among other matters, with international crimes, narcotics, fraud, graft and corruption, arson and
personnel background investigation.

The second pillar is the prosecution arm of the government. It is mandated to uphold the rule of law.
The National Prosecution Service is made up of the Regional, Provincial and City Prosecutors, and State
Prosecutors. Their mission is to maintain peace and order in the community through the delivery of prompt
prosecutional services, that is, the investigation of crimes and the prosecution of criminals.

There are two (2) prefatory stages in criminal actions. The first stage pertains to police activities, the
initial investigation of crimes reported to or discovered by police authorities. The second prefatory stage is
the preliminary investigation. It is the stage at which the prosecutor evaluates the findings of the police to
determine if prosecution of the suspect in court is warranted. A preliminary investigation is an important
substantive right of persons accused of crimes, deprivation of which is tantamount to a denial of due process.
It is designed to guard against hasty and malicious prosecutions (Narvasa, Handbook on the Criminal Justice
System, pp. 12-14).

Preliminary investigations may be conducted by the prosecutors, and such other officers as may be
authorized by law or judges of Municipal Trial Courts or Municipal Circuit Trial Courts (Sec. 2, Rule 112,
Rules of Court). As regards crimes within the jurisdiction of Regional Trial Courts, the accused may
demand a preliminary investigation as a matter of right. With respect to offenses cognizable by Municipal
Trial Courts, no preliminary investigation is required by law. The prosecutor determines ex parte if the
suspect has probably committed the offense charged, then files the information in court for trial and
judgment.

They say that the Prosecutor, in whatever land or clime, holds a very important and powerful office
in the CJS. His is the decision whether to prosecute a case or not. He may nolle prosequi (decide not to
prosecute) if he feels that the evidence is insufficient to gain a conviction, yet he may hold the case open
for further action if and when warranted. Subject only to a few constraints, he determines who will be
formally tried and for what offenses, and whether to dismiss charges or offer an accused an opportunity to
plea bargain for a reduced charge or he may recommend lighter sentence. It is he, in effect, who determines
which case will ever reach the courts for adjudication, and who can terminate the processing of any case
anywhere in the system.

But powerful as the prosecutor may seem to be in the Philippines, as well as in any other country,
yet he cannot successfully prosecute cases alone, or render justice to anyone, without the cooperation and
collaboration of the other components of the criminal justice system. For the prosecutor cannot successfully
prove his case without the evidence gathered by the apprehending and/or investigating police officer or law

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enforcement agent. Neither may he be able to establish his case in court in the absence of fair, competent
and independent-minded judge. Nor would his work and that of the judge end in the conviction of the felon,
for without the dedication to duty of prison and custodial officers, and the rehabilitating assistance rendered
by the community, said felon or criminal would keep coming into the system and be a burden to society.
For like the bow and arrow, the prosecution and the other components of the criminal justice would be
useless without the other (Speech of ACSP Nilo C. Mariano before the Konrad Adenauer Foundation).

The third pillar of the CJS is the courts pillar. It is the forum where the prosecution is given the
opportunity to prove that there is a strong evidence of guilt against the accused. It is also in the courts that
the accused is given his “day” to disprove the accusation against him.

The constitutional presumption is the innocence of any person accused of a crime unless proven
otherwise. This means that the courts must determine the guilt of the accused beyond reasonable doubt, i.e.
based on the strength of the evidence of the prosecution. If there is reasonable doubt that the accused
committed the crime, he has to be acquitted.

The fourth pillar is the corrections pillar. It takes over once the accused, after having been found
guilty, is meted out the penalty for the crime he committed. The punishment may be in the form of isolation
of the convicts by imprisonment for the periods laid down by the courts, or in extreme cases, their execution
by the method prescribed by law. When the penalty is imprisonment, the sentence is carried out either in
the municipal/city jails, the provincial jail or national penitentiary depending on the length of the sentence
meted out.

The Bureau of Corrections, Board of Pardons and Parole, and the Parole and Probation
Administration, agencies also of the DOJ, are part of the corrections pillar. The principal task of the Bureau
of Corrections is the rehabilitation of prisoners so they can become useful members of society after service
of sentence. The Board of Pardons and Parole recommends to the President the prisoners who are qualified
for parole, pardon or some other executive clemency. The Probation Administration exercises general
supervision over all parolees and probationers and promotes the correction and rehabilitation of offenders.

There are other agencies charged with the administration and supervision of prisoners and detainees.
These are the Bureau of Jail Management and Penology (which supervises city and municipal jails), and the
various Offices of the Provincial Jail Warden/Provincial Governor (which administers the Provincial Jails),
which are under the Department of the Interior and Local Government (DILG).

It bears emphasis that the administration of criminal justice is not the exclusive responsibility of the
police, the prosecutors, the judges, and the corrections personnel. “Out of necessity,” it has been said, “the
criminal justice system relies on citizen participation”.

Without the active participation of the members of the community, the processes of the criminal
justice system cannot operate. The police rely on citizens to report crimes and to assist them in the conduct
of investigations. The prosecutors and the judges depend upon citizens as witnesses in the prosecution of
the offender. The corrections’ staff trust them to support community-based corrections programs (Puno,
Contemporary Problems in the Administration of Criminal Justice, CJ Journal, 1982, vol. 2).

The community at large is expected to formulate moral and ethical values, develop the environment
for the development of civic-spirited citizens, foster respect for and observance of the Rule of Law. Public
and private educational institutions, parents and guardians, churches, religious organizations, civic
associations, among others, are collectively considered a component of the CJS, so are individual citizens
who are supposed to prevent crimes, report offenses to the authorities, make warrantless arrests in proper
cases, give evidence in court to put criminals behind bars, and help in the rehabilitation of offenders.

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 The community component also includes attorneys who, among other things, give counsel and help
settle rights and prevent controversies.

The community pillar also includes government institutions, such as the Bureau of Posts which
delivers court notices; the Bureau of Immigration and Deportation which prevent departure of suspects from
the country; Bureau of Telecommunications which transmit communications by telephone, telegram, radio
(Phil. Law Gazette, Narvasa).

In this regard, the mass media should be encouraged to contribute positively to the education of the
public on issues of crime prevention and criminal justice, as an important tool of socialization, together with
programs on civic and legal education.

We believe that broadcasters have a crucial role as social catalysts, exerting tremendous influence on
the way people think and the way they live, specifically in the aspects of crime prevention and public safety.
If we want a safer place for our families, friends and neighbors, citizens like you need to take an active part
… NOW.

Radio and television are considered the best channels through which information can be disseminated
to the general public. In reach and immediacy, nothing can beat radio because practically every Filipino
household owns a radio set. On the other hand, television is becoming a national medium.

According to the Philippine Survey and Research Council (PSRC), while television is mainly seen as
an entertainment medium, it is growing as a medium of information on current events. Radio is viewed as
a source for current events, particularly local news. Radio has a personalized role in the marketing of ideas
and information. Hence, the broadcast media must be used properly to fight criminality (Escaner, Jr., Crime
Prevention, Broadcaster’s Manual).

History and experience show that the key to success of any criminal justice system is public
participation. Thus, the Philippines has decided to add the community pillar to its own concept of the
criminal justice system.

We have given this dignity to the community because the wholesome and highly effective work of
non-governmental organizations (NGOs) in our country has evolved into a veritable science and art, a virtual
discipline in itself. This evolution in our country reached its climax with the staging of the greatest public
participation ever recorded in the annals of history, that is the phenomenon of People Power, wherein, in
the twinkling of an eye, so to speak, a government perceived by the public as totalitarian was changed into
a democratic form within a period of only 4 days – and with hardly any bloodshed at that.

U.S. President George Bush has put it on record that the People Power model of the Philippines was
the very one followed, first by East Germany, then by the Soviet Union, in dismantling their totalitarian
governments. We could therefore, say, modesty aside, that we have contributed to world politics the concept
of People Power, which an author from the United States of America (from where we learned democracy)
referred to as “The Greatest Democracy Ever Told.”

If an entire government perceived as “criminal” could be changed in a matter of days, then we have
discovered or invented a virtual shortcut to preventing crime. If a “criminal” world superpower, such as the
Soviet Union, could be changed almost overnight by the phenomenon of People Power, we can also conquer,
root out and banish crime and criminal syndicates, which cannot even compare with a superpower, through
the same awesome and tremendous might of People Power. (Torres, The Effective Administration of
Criminal Justice: Public Participation and Corruption Prevention, CJ Journal, 2nd Quarter, 1995)

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 I can say without fear of contradiction that the key to success in the prosecution and conviction of a
criminal lies in the community, specifically, the witnesses, be they eyewitnesses or expert witnesses.

During the preliminary investigation stage, if there is no witness to corroborate the allegations of the
complaint and the same is bereft of any documentary evidence, the investigating prosecutor/judge will be
constrained to dismiss the complaint.

It is settled that the purpose of a preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from
the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trials (Trocio vs. Manta, 118 SCRA 241; citing Hashim vs. Boncan, 71 Phil. 216). It is, therefore, imperative
upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going through a trial
once it is ascertained that the evidence is not sufficient to sustain a prima facie case or that no probable
cause exists to form a sufficient belief as to the guilt of the accused (La Chemise Lacoste, S.A. vs.
Fernandez, 129 SCRA 391).

Moreover, without the testimony of witnesses during the trial of cases, many guilty parties would
escape (People vs. Court of Appeals, et al., G.R. No. 55533, July 31, 1984). Consequently, when the court
is satisfied, upon proof or oath, that a material witness will not testify when required, it may upon the motion
of either party order the witness to post bail in such sum as may be deemed proper. Upon refusal to post
bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has
been taken (Sec. 14, Rule 119, The Revised Rules of Criminal Procedure).

We must not forget, therefore, that “(o) ne of the duties which the citizen owes to his government is
to support the administration of justice by attending its courts and giving his testimony whenever he is
properly summoned. Justice requires the attendance of witnesses cognizant of material facts and no
unreasonable obstacle ought to be thrown in the way of their freely coming into court to give oral testimony.
(97 CJS, 350) ‘The public has a right to every man’s evidence’, said a great English judge two centuries
ago. This maxim is universally conceded. Justice cannot be done without first finding facts; and witnesses
who can possibly help to disclose the facts must give that help. Each must contribute when his neighbor
needs it, so that he himself may receive like help when the time comes that he needs it. The testimonial
duty is one of the fundamental ones that must be recognized in any organized society; otherwise justice
becomes impotent.” (Wigmore on Evidence)

It is undeniable that one of the many problems which the prosecutors and courts encounter in their
investigation and prosecution of criminal offenders is the lack of cooperation of vital witnesses who are
usually hesitant to testify out of sheer indifference, or fear of reprisal against themselves and their immediate
families, or for economic reasons. Hence, R.A. No. 6981, otherwise known as the “Witness Protection
Security and Benefit Act” was enacted and the Witness Protection Security and Benefit Program was
formulated to address this problem.

Three kinds of witnesses are covered by the Witness Protection, Security and Benefit Act:
1) those who witnessed or have knowledge of the commission of a crime, but are not participants
in the commission thereof;
2) those who participated in the commission of the offense, but whose testimony is necessary for
the prosecution of the crime; and
3) witnesses in case of legislative investigation in aid of legislation.

The aforecited law extends its protective mantle over any “person who has witnessed or who has
knowledge or information on the commission of a grave felony” and has “testified or is testifying or about
to testify before any judicial or quasi-judicial, or before any investigating authority,” and to any member of
the family of the witness within the second civil degree of consanguinity or affinity whenever such family

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member is subjected to threats to his life or bodily injury or to intimidation and harassment to prevent from
testifying or to coerce him into giving false testimony.

Whenever a witness to a grave felony is subjected to threat to his life or bodily injury or whenever
such threat is directed to any member of his family within the aforesaid degree of relationship, such witness
or member of family shall be entitled to the benefits of the act. There is one exception: when the witness
is a law enforcement officer. However, the immediate members of his family may still avail of the
protection provided under said law.

Subject to the following conditions, the law allows an accused or a participant in the commission of
a grave felony to apply for the benefits of the program, viz:

1) There is absolute necessity for the testimony of the accused whose discharge is requested;

2) There is no other direct evidence available for the proper prosecution of the offense committed,
except the testimony of said accused;

3) The testimony of said accused can be substantially corroborated in its material points;

4) Said accused does not appear to be the most guilty;

5) Said accused has not at any time been convicted of any offense involving moral turpitude
(Nolledo, Handbook On Criminal Procedure, pp. 437-438, citing various cases).

The Supreme Court has laid down the philosophy thereof:

“The ground underlying the rule is not to let a crime that has been committed go
unpunished, so an accused who is not the most guilty is allowed to testify against the most guilty
in order to achieve the greater purpose of securing the conviction of the more or most guilty and
the greatest number among the accused permitted to be convicted for the offense they have
committed. Experience under English and American procedural methods has shown that without
the aid of informers testifying against their co-participants in crime, many guilty parties would
escape, where the facts which would sustain a conviction are known to the guilty parties
themselves.

“The said law likewise extends its protective coverage to those who testify before legislative
investigations conducted by Congress or its committees. It can be said then that the law is broad
in its application since its coverage is not confined to witnesses in criminal cases but also extends
to those who testify before quasi-judicial bodies, including legislative investigations conducted by
Congress or its committees.”

“The role of non-governmental organizations or what we may call, in a way, the mobilized
sector of the community pillar in the criminal justice system cannot be overemphasized vis-à-vis
their telling impact on the rest of the criminal justice system: law enforcement, prosecution, courts,
and corrections. In the absence of a militant public that exerts pressure on prosecutors, judges and
all personnel to speedily prosecute and try cases, and treat convicts humanely in preparation for
their re-assimilation into the mainstream of society, these central figures in the criminal justice
cycle are bound to relax and take their own sweet time as regards the disposition of cases and
treatment of offenders. A no-nonsense government leadership backing up public pressure on
officials of the criminal justice process is a compelling factor that would make the prosecution and
the courts buckle down to work to arrive at the truth” (id, pp. 24-26).

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 With the active participation of the community in the preliminary investigation and trial of
cases, local people become both the SERVERS and the SERVED (Cuaderno, Community
Involvement in Crime Prevention, CJ Journal, 3rd & 4th Quarters 1984).

IV. Is it really the pillars or the family that is the basic unit of the institution