Memo on life and death
“Now we kill not only extrajudicially but judicially!” someone said mockingly right after the House of Representatives passed the bill restoring the death penalty.
“This is where we part. You are for death. I am for life. How can we reconcile this when the difference is literally life or death?” economist Cesar Polvoroza Jr. solemnly declared.
A new chasm has opened, further degrading life already degraded by 7,000 plus killings without due process in President Duterte’s war on drugs. Journalist Criselda Yabes’ Facebook reprint of her story on Leo Echegaray’s execution in 1999 turned into a vital memo as attention turns to the Senate’s own deliberation on the matter.
Echegaray’s rape case was the first one filed after Congress restored the death penalty amid bruising debate and mass protest in late 1993. Four years later, without a hearing, the Supreme Court dismissed Echegaray’s motion for reconsideration, keeping secret the votes of 15 justices, three of them dissenting.
Echegaray’s lawyer, Theodore Te, argued that the Quezon City Regional Trial Court had failed to prove Echegaray’s guilt beyond reasonable doubt, and to probe the supposed victim’s grandmother’s “sinister motive” for filing the case, or even establishing when the crime occurred. Furthermore, Te argued, the death penalty was unconstitutional because Congress was still discussing the reinstatement of capital punishment which was abolished by the 1987 Constitution.
In 1997 the Supreme Court dismissed this for “lack of merit” while keeping Echegaray’s life hanging in the balance as Congress made up its mind on restoring the death penalty.
The question that polarized the Constitutional Commission’s committee on the Bill of Rights—Does the death penalty really deter crime?—was back with a vengeance. It settled for what became Article III, Section 19 of a new Constitution: The death penalty shall not be imposed unless “for compelling reasons involving heinous crimes.” Death sentences were to be commuted to life imprisonment.
The counterquestion—What if we need it in the future?—deadlocked the commission, so it passed the ball of defining “heinous crimes” deserving death to a future elected Congress.
Founded by Jose W. Diokno, the Free Legal Assistance Group (FLAG) to which Te belonged was lobbying to repeal Republic Act No. 7659 restoring capital punishment. FLAG stressed that in 1995, two-thirds of 165 convicts sentenced to death, like the slum-dweller Echegaray, were too poor and intimidated to afford good lawyers.
Te reasoned that since Congress did not provide specific parameters to crimes punishable by death, in effect it reinstated the list of crimes in the Penal Code of the 1930s. He told Yabes that Congress ignored this, either by chance or design, when it brought back the death penalty in 1993. Finding a loophole, the Supreme Court replied, “The death penalty had not been completely abolished in the Constitution.”
Yabes reminds us of a powerful silent factor behind the legalism—public perception of rising crime vis a vis “systemic flaws in the police, the courts and the lawmakers themselves. In the early 1990s, the victims were mostly young students… Highly publicized cases of rape and murder hit the middle class in the gut.” Fairly or unfairly, fear turned Echegaray into a poster boy rapist.
Only after his execution by lethal injection in February 1999 did then Justice Artemio Panganiban break his judicial silence on his dissenting vote in a chilling postmortem: “If there had been an error in Echegaray’s relations with the victim, he could have otherwise received the sentence of life imprisonment…
“Judges can make wrongful evaluations. It’s still possible that an innocent man would be held legally guilty and judicially executed.”
Panganiban noted hasty verdicts turning lower courts into “virtual factories of death as they churned out thousands of death sentences every year.” Indeed, FLAG pointed out, about 75 percent of death row convictions were made in error by the lower courts; 7 out of 10 cases did not deserve death.
Echegaray’s execution lit new fire for “Thou shalt not kill.” In 2000, President Joseph Estrada suspended the death sentence in the name of the Christian millennium. His successor, President Gloria Arroyo, commuted some sentences, granted reprieve to others. By 2003, a bill repealing the death penalty had been overwhelmingly approved in both chambers of Congress. Three years later, on the eve of a state visit to the Vatican, Arroyo abolished the death penalty.
So is it forward or backward now on irreplaceable human life, Filipinos?
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Sylvia L. Mayuga is an essayist, sometime columnist, poet, documentary filmmaker and environmentalist. She has three National Book Awards to her name.