Return of death penalty in PH 'violates' international law

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Metro Manila (CNN Philippines) — President Rodrigo Duterte and some lawmakers have called for the return of the death penalty as a way to strengthen the rule of law. But the Philippines could violate international law if it brings the punishment back.

The country is a party to the International Covenant on Civil and Political Rights (ICCPR) — an international treaty that, among other things, prescribes states to respect and observe fundamental freedoms. These include freedom of expression, freedom of religion, and freedom from cruel, inhumane, or degrading punishment.

Commission on Human Rights Chairperson Chito Gascon told CNN Philippines that "The death penalty is categorized as one such cruel, inhumane, and degrading treatment."

The Philippines has also ratified the ICCPR's Second Optional Protocol which urges states to abolish the death penalty and prevents them from carrying out executions.

An Optional Protocol is a supplementary agreement to a treaty. According to U.P. Law Professor and Kabayan Party List Rep. Harry Roque, it is "optional" in the sense that those who ratified the ICCPR have the option of ratifying the additional agreement. Not all parties who ratified the ICCPR have ratified its optional protocols.

It is wrong to say that those who ratified the optional protocols may choose to disregard them any time they please.

"If a State… chooses to ratify the optional protocols, it may not disregard their obligations under the protocol. Both the ICCPR and the Optional Protocols are considered treaties under international law, and thus parties to such agreements are bound to comply with them in good faith," Roque explained.

No turning back?

The Philippines signed the ICCPR on December 19, 1966 and ratified it on October 23, 1986. It opted to sign the Second Optional Protocol on September 20, 2006. The annex was ratified on November 20, 2007.

The Second Optional Protocol explicitly forbids the Philippines — and others states who have ratified it — from conducting executions within their respective jurisdictions: "No one within the jurisdiction of a State Party to the present Protocol shall be executed."

However, it provides for one exception: Countries who expressed reservations only during the time of ratification or accession may resort to the death penalty in times of war for those convicted of "a most serious crime of a military nature committed during wartime."

The Philippines cannot claim the exception because it did not make reservations when it ratified the Second Optional Protocol. "[I]n no case could death penalty be seen as acceptable under this treaty," Roque stressed.

According to the document, countries are compelled to "take all necessary measures to abolish the death penalty."

As treaties, the ICCPR and its Second Optional Protocol form part of international law. Other human rights treaties include the Convention on the Rights of the Child and the International Convention on Social, Economic, and Cultural Rights.

"Since the Philippines has ratified the Second Optional Protocol to the ICCPR, it would be violating international law by restoring the death penalty," Roque pointed out.

Complaints against the Philippines?

Roque explained that a complaint may be brought before the international community if the country brings back the said punishment.

"Under the First Optional Protocol (of the ICCPR) which the Philippines has also ratified, individuals may file complaints before the United Nations Human Rights Committee (UNHRC). The UNHRC could then investigate the case and provide a view if indeed there was a violation of the ICCPR or any of the Optional Protocols."

However, he pointed out that complaints before the UNHRC are not binding decisions, as it is not a judicial tribunal. "Even if it did find violations, it would not have it would not have the authority to enforce its view upon a State."

Death penalty is 'retribution'

During his first press conference after the May 9 elections, Duterte said he wanted Congress to restore death penalty by hanging for convicts involved in illegal drugs, gun-for-hire syndicates, and those who commit “heinous crimes” like rapists, robbers or car thieves who kill their victims.

In a speech on June 22, he said that death penalty was a form of retribution apart from a way of deterring crime:

"Para ma-discourage ang tao mag-commit ng crime because there is the death penalty,"Duterte said. "Iyong death penalty to me is retribution. Magbayad ka sa ginawa mo sa buhay na 'to."

[Translation: To discourage people from committing crime because there is the death penalty. To me, death penalty is retribution. You’re going to pay for whatever you did in this life.]

Senator Panfilo Lacson also filed a bill that would mete out lethal injection for convicts of crimes including treason, murder, plunder, and rape.

“To reinstate public order and the rule of law, there is an impending need to revisit and re-impose the death penalty on certain heinous crimes,” Lacson said in a statement on July 3.

“[A] death penalty law is appropriately necessary due to the alarming upsurge of such crimes.”

According to the statement, the PNP's Directorate for Investigation and Detective Management documented 9,646 murder cases; 31,741 cases of robbery; and, 10,298 rape cases in 2015.

"These translate to an average crime incidence of a murder every 54 minutes, a robbery every 16 minutes, and a rape case every 51 minutes," the statement added.

At the House of Representatives, the first bill filed in the 17th Congress also seeks to reimpose lethal injection on certain heinous crimes. It was authored by House Speaker Pantaleon Alvarez with Capiz Rep. Fredenil Castro.

"The imposition of the death penalty for heinous crimes and the mode of its implementation, both subjects of repealed laws, are crucial components of an effective dispensation of both reformative and retributive justice," read a part of the bill.

Zero-sum game?

Gascon believes that human rights and security are not mutually exclusive: the gain of one is not the loss of the other.

"In our society today what has happened is that there has been rampant criminality and there’s a demand to address that — so people often think that the only way to address it is to reduce human rights. What needs to be done is to have a more purposive process of law enforcement that will in time guarantee safety and security of the population.

"Over the long term, human rights are in fact the best guarantee of safety and security," Gascon added.

Roque said that it was important to remember the "significance" of international law in dealing with human rights issues. For him, it's value does not only lie on the enforceability of a certain view.

"The strength of international law lies in the normative values it represents. Rather than using international law as a tool to threaten the administration, it should be used as a reminder to the administration of what the international community expects of the Philippines as a developing nation within the greater international community."