To kill or not to kill: The re-imposition of the death penalty

By Atty. Eduardo T. Reyes III

 

A recent pronouncement from the government that is starting to cause ructions is the obdurate plan to re-impose the death penalty. This will revive the age-old moral question of whether it is right to take one’s life as punishment for taking the life of another. Of course, at the core of the debate is the issue of where to strike a balance between maintaining a peaceful and orderly society and saving human life- regardless of the evil deeds of that person whose life will be taken away.

 

From a legal perspective, the Philippine Supreme Court had already spoken by pouring cold water on the argument that the death penalty is a cruel and inhumane punishment that the Constitution prohibits. In a rather philosophical discourse, the Court upheld the constitutionality of the death penalty and declared that:  Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquility and civility may rule comprehensively. It seems very likely that capital punishment is a . . . necessary, if limited factor in that maintenance of social tranquility and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival. PEOPLE OF THE PHILIPPINES v. LEO ECHEGARAY y PILO, G.R. No. 117472 February 7, 1997

 

Fortunately for those advocating for the abolishment of the death penalty, Congress heard their pleas when it passed  REPUBLIC ACT No. 9346 entitled AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES which came into effect on June 24, 2006.

 

Now this law must be repealed if the death penalty is to be re-imposed. And once re-imposed, those who will be charged with heinous crimes will have to face death as the ultimate punishment for their odious acts.

 

But then again, how can we be so sure that indeed they perpetrated those unthinkable acts that they are accused of?

 

Some will say that our courts of justice with their knowledge of law and procedure will ensure that the accused will get a fair trial and especially in criminal cases where the accused cannot be convicted upon anything less than proof beyond reasonable doubt, justice will be served.

But is our criminal justice system foolproof? Its three pillars which start with the police already falters in evidence-gathering and crime investigation. Then our prosecutors charged with conducting preliminary investigation are overworked and saddled with court litigation not to mention that under the Rules, preliminary investigation is supposed to be only inquisitorial – which means that there is even no need for the suspect to meet the complainant face-to-face and the case could already be elevated to the courts on mere affidavits. And then finally, once the case reaches the courts, what are the mechanisms that could guarantee a fair and impartial trial to the accused?

 

Here lies the difference between a jury trial which is practiced in other countries and trial before a judge which is the system adopted in the Philippines. In jury trials, the judge presides only over the legal aspect of the trial such as whether certain pieces of evidence are admissible under the law of evidence or not. And once all of the evidence is in, the judge steps aside and leaves the weighing of the evidence to the jury. The jury deliberates and by applying simple common sense and basic human experience, it decides on whether the accused is guilty or not. While in the Philippine justice system, the judge rules on admissibility of evidence and likewise on the weight and probability of the evidence and ultimately decides on the accused’s guilt.

 

With the glacial pace of our justice system, trials can spread out for a good ten to fifteen years. The recent pandemic is of no help as courts would have to lessen court hearing schedules to maximize social -distancing measures. This would severely impact on the time-tested safeguard against perjury inside the courtroom that requires trial judges to keenly observe the demeanor of witnesses particularly those who seek to pin down the accused as the culprit. The witness’s demeanor is ascertained from his facial expressions like the twitching of the face, shifty eyes, and heavy sweating. The judge who occupies the best seat in the house wields the power of declaring a witness as either credible or not. And whatever the judge declares to be his/ her assessment of witness testimony, it usually is upheld on appeal.

 

Then again, in the middle of the pandemic where the wearing of face-masks (or even face shields?) is mandatory, this means that even witnesses must wear them on the witness stand. Or in cases where trials by videoconferencing are allowed, it is seriously doubted whether the judge could still keenly observe the demeanor of the witness and apply the time-tested safeguards of ensuring that only credible witness testimony can usher in the accused to the lethal injection.

 

And in most cases where no eyewitness account can be presented in court, the prosecution would most usually rely on circumstantial evidence. But there are dangers to circumstantial evidence. “Circumstantial evidence is a very tricky thing. It may seem to point very straight to one thing, but if you shift your own point of view a little, you may find it pointing in an equally uncompromising manner to something entirely different.” (p. 309, Volume II, Sherlock Holmes, The Complete Novels and Stories).   

 

Given the factual backdrop, the timing of the re-imposition of the death penalty is very much suspect. Perhaps in another time or era, the heated debate on the death penalty can be re-ignited. But at this time when everything seems precarious, when lives in the multitude are being taken by COVID-19, and the government to include the policemen, are flummoxed on how to deal with the pandemic, re-imposing the death penalty should be the last thing in the pipeline. In the choice between a sentence for life or of death, all doubts must be resolved in favor of life.

 

Almost a century ago, Clarence Darrow, who is arguably one of the greatest lawyers that ever lived, pleaded in court to spare the lives of his clients who were just youths but had committed a gruesome crime. His words should reverberate in today’s debate over the re-imposition of the death penalty. Thus, he said: “I am pleading for the future… I am pleading for a time when hatred and cruelty will not control the hearts of men, when we can learn by reason and judgment and understanding and faith, that all life is worth saving, and that mercy is the highest attribute of man”.- Clarence Darrow (summation for the defense in The State of Illinois v. Leopold and Loeb, July 21 to August 28, 1924, p. 130 The Last Trials of Clarence Darrow by Donald McRae)

 

(Atty. Eduardo T. Reyes, III is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).