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358 Phil. 410

EN BANC

[ G.R. No. 132601, October 12, 1998 ]

LEO ECHEGARAY Y PILO, PETITIONER, VS. THE SECRETARY OF JUSTICE AND THE DIRECTOR OF THE BUREAU OF CORRECTIONS, THE EXECUTIVE JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY AND THE PRESIDING JUDGE OF REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 104, RESPONDENTS.

D E C I S I O N

PER CURIAM:

On June 25, 1996, this Court affirmed[1] the conviction of petitioner Leo Echegaray y Pilo for the crime of rape of the 10 year-old daughter of his common-law spouse and the imposition upon him of the death penalty for the said crime.

Petitioner duly filed a Motion for Reconsideration raising mainly factual issues, and on its heels, a Supplemental Motion for Reconsideration raising for the first time the issue of the constitutionality of Republic Act No. 7659[2] (the death penalty law) and the imposition of the death penalty for the crime of rape.

On February 7, 1998, this Court denied[3] petitioner's Motion for Reconsideration and Supplemental Motion for Reconsideration with a finding that Congress duly complied with the requirements for the reimposition of the death penalty and therefore the death penalty law is not unconstitutional.

In the meantime, Congress had seen it fit to change the mode of execution of the death penalty from electrocution to lethal injection,[4] and passed Republic Act No. 8177, AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said law, the Secretary of Justice promulgated the Rules and Regulations to Implement Republic Act No. 8177 ("implementing rules")[6] and directed the Director of the Bureau of Corrections to prepare the Lethal Injection Manual.[7]

On March 2, 1998, petitioner filed a Petition[8] for Prohibition, Injunction and/or Temporary Restraining Order to enjoin respondents Secretary of Justice and Director of the Bureau of Prisons from carrying out the execution by lethal injection of petitioner under R.A. No. 8177 and its implementing rules as these are unconstitutional and void for being: (a) cruel, degrading and inhuman punishment per se as well as by reason of its being (b) arbitrary, unreasonable and a violation of due process, (c) a violation of the Philippines' obligations under international covenants, (d) an undue delegation of legislative power by Congress, (e) an unlawful exercise by respondent Secretary of the power to legislate, and (f) an unlawful delegation of delegated powers by the Secretary of Justice to respondent Director.

On March 3, 1998, petitioner, through counsel, filed a Motion for Leave of Court[9] to Amend and Supplement Petition with the Amended and Supplemental Petition[10] attached thereto, invoking the additional ground of violation of equal protection, and impleading the Executive Judge of the Regional Trial Court of Quezon City and the Presiding Judge of the Regional Trial Court, Branch 104, in order to enjoin said public respondents from acting under the questioned rules by setting a date for petitioner's execution.

On March 3, 1998, the Court resolved, without giving due course to the petition, to require the respondents to COMMENT thereon within a non-extendible period of ten (10) days from notice, and directed the parties "to MAINTAIN the status quo prevailing at the time of the filing of this petition."

On March 10, 1998, the Court granted the Motion for Leave of Court to Amend and Supplement Petition, and required respondents to COMMENT thereon within ten (10) days from notice.

On March 16, 1998, petitioner filed a Very Urgent Motion (1) To clarify Status Quo Order, and (2) For the Issuance of a Temporary Restraining Order expressly enjoining public respondents from taking any action to carry out petitioner's execution until the petition is resolved.

On March 16, 1998, the Office of the Solicitor General[11] filed a Comment (On the Petition and the Amended Supplemental Petition)[12] stating that (1) this Court has already upheld the constitutionality of the Death Penalty Law, and has repeatedly declared that the death penalty is not cruel, unjust, excessive or unusual punishment; (2) execution by lethal injection, as authorized under R.A. No. 8177 and the questioned rules, is constitutional, lethal injection being the most modern, more humane, more economical, safer and easier to apply (than electrocution or the gas chamber); (3) the International Covenant on Civil and Political Rights does not expressly or impliedly prohibit the imposition of the death penalty; (4) R.A. No. 8177 properly delegated legislative power to respondent Director; and that (5) R.A. No. 8177 confers the power to promulgate the implementing rules to the Secretary of Justice, Secretary of Health and the Bureau of Corrections.

On March 17, 1998, the Court required the petitioner to file a REPLY thereto within a non-extendible period of ten days from notice.

On March 25, 1998, the Commission on Human Rights[13] filed a Motion for Leave of Court to Intervene and/or Appear as Amicus Curiae[14] with the attached Petition to Intervene and/or Appear as Amicus Curiae[15] alleging that the death penalty imposed under R.A. No. 7659 which is to be implemented by R.A. No. 8177 is cruel, degrading and outside the limits of civil society standards, and further invoking (a) Article II, Section 11 of the Constitution which provides: "The State values the dignity of every human person and guarantees full respect for human rights."; (b) Article III of the Universal Declaration of Human Rights which states that "Everyone has the right to life, liberty and security of person," and Article V thereof, which states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."; (c) The International Covenant on Civil and Political Rights, in particular, Article 6 thereof, and the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming At The Abolition of the Death Penalty; (d) Amnesty International statistics showing that as of October 1996, 58 countries have abolished the death penalty for all crimes, 15 countries have abolished the death penalty for ordinary crimes, and 26 countries are abolitionists de facto, which means that they have retained the death penalty for ordinary crimes but are considered abolitionists in practice that they have not executed anyone during the past ten (10) years or more, or in that they have made an international commitment not to carry out executions, for a total of 99 countries which are total abolitionists in law or practice, and 95 countries as retentionists;[16] and (e) Pope John Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April 3, 1998, the Court duly noted the motion.

On March 27, 1998, petitioner filed a Reply[17] stating that (1) this Court is not barred from exercising judicial review over the death penalty per se, the death penalty for rape and lethal injection as a mode of carrying out the death penalty; (2) capital punishment is a cruel, degrading and inhuman punishment; (3) lethal injection is cruel, degrading and inhuman punishment, and that being the "most modern" does not make it less cruel or more humane, and that the Solicitor General's "aesthetic" criteria is short-sighted, and that the lethal injection is not risk free nor is it easier to implement; and (4) the death penalty violates the International Covenant on Civil and Political Rights considering that the Philippines participated in the deliberations of and voted for the Second Optional Protocol.

After deliberating on the pleadings, the Court gave due course to the petition, which it now resolves on the merits.

In the Amended and Supplemental Petition, petitioner assails the constitutionality of the mode of carrying out his death sentence by lethal injection on the following grounds:[18]
I.


DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL FOR BEING A CRUEL, DEGRADING AND INHUMAN PUNISHMENT.

II.


THE DEATH PENALTY VIOLATES THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH IS PART OF THE LAW OF THE LAND.

III.


LETHAL INJECTION, AS AUTHORIZED UNDER REPUBLIC ACT NO. 8177 AND THE QUESTIONED RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN UNNECESSARY AND WANTON INFLICTION OF PAIN ON A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND INHUMAN PUNISHMENT.

IV.


REPUBLIC ACT NO. 8177 UNDULY DELEGATES LEGISLATIVE POWER TO RESPONDENT DIRECTOR.

V.


RESPONDENT SECRETARY UNLAWFULLY DELEGATED THE LEGISLATIVE POWERS DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT DIRECTOR.

VI.


RESPONDENT SECRETARY EXCEEDED THE AUTHORITY DELEGATED TO HIM UNDER REPUBLIC ACT NO. 8177 AND UNLAWFULLY USURPED THE POWER TO LEGISLATE IN PROMULGATING THE QUESTIONED RULES.

VII.


SECTION 17 OF THE QUESTIONED RULES IS UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS WELL AS FOR BEING AN INVALID EXERCISE BY RESPONDENT SECRETARY OF THE POWER TO LEGISLATE.

VIII.


INJUCTION MUST ISSUE TO PREVENT IRREPARABLE DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY REASON OF THE EXISTENCE, OPERATION AND IMPLEMENTATION OF AN UNCONSTITUTIONAL STATUTE AND EQUALLY INVALID AND IMPLEMENTING RULES.
Concisely put, petitioner argues that R.A. No. 8177 and its implementing rules do not pass constitutional muster for: (a) violation of the constitutional proscription against cruel, degrading or inhuman punishment, (b) violation of our international treaty obligations, (c) being an undue delegation of legislative power, and (d) being discriminatory.

The Court shall now proceed to discuss these issues in seriatim.

I. LETHAL INJECTION, NOT CRUEL, DEGRADING OR INHUMAN PUNISHMENT UNDER SECTION 19, ARTICLE III OF THE 1987 CONSTITUTION.

The main challenge to R.A. 8177 and its implementing rules is anchored on Article III, Section 19 (1) of the 1987 Constitution which proscribes the imposition of "cruel, degrading or inhuman" punishment. "The prohibition in the Philippine Bill against cruel and unusual punishments is an Anglo-Saxon safeguard against governmental oppression of the subject, which made its first appearance in the reign of William and Mary of England in 'An Act declaring the rights and liberties of the subject, and settling the succession of the crown,' passed in the year 1689. It has been incorporated into the Constitution of the United States (of America) and into most constitutions of the various States in substantially the same language as that used in the original statute. The exact language of the Constitution of the United States is used in the Philippine Bill."[19] "The counterpart of Section 19 (1) in the 1935 Constitution reads: 'Excessive fines shall not be imposed, nor cruel and inhuman punishment inflicted.' xxx In the 1973 Constitution the phrase became 'cruel or unusual punishment.' The Bill of Rights Committee of the 1986 Constitutional Commission read the 1973 modification as prohibiting 'unusual' punishment even if not 'cruel.' It was thus seen as an obstacle to experimentation in penology. Consequently, the Committee reported out the present text which prohibits 'cruel, degrading or inhuman punishment' as more consonant with the meaning desired and with jurisprudence on the subject."[20]

Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman punishment considering that (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal injection, the dosage for each drug to be administered, and the procedure in administering said drug/s into the accused; (2) R.A. No. 8177 and its implementing rules are uncertain as to the date of the execution, time of notification, the court which will fix the date of execution, which uncertainties cause the greatest pain and suffering for the convict; and (3) the possibility of "botched executions" or mistakes in administering the drugs renders lethal injection inherently cruel.

Before the Court proceeds any further, a brief explanation of the process of administering lethal injection is in order.

In lethal injection, the condemned inmate is strapped on a hospital gurney and wheeled into the execution room. A trained technician inserts a needle into a vein in the inmate's arm and begins an intravenous flow of saline solution. At the warden's signal, a lethal combination of drugs is injected into the intravenous line. The deadly concoction typically includes three drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep inducing barbiturate; (2) lethal doses of pancuronium bromide, a drug that paralyzes the muscles; and (3) potassium chloride, which stops the heart within seconds. The first two drugs are commonly used during surgery to put the patient to sleep and relax muscles; the third is used in heart bypass surgery.[21]

Now it is well-settled in jurisprudence that the death penalty per se is not a cruel, degrading or inhuman punishment.[22] In the oft-cited case of Harden v. Director of Prisons,[23] this Court held that "[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Would the lack in particularity then as to the details involved in the execution by lethal injection render said law "cruel, degrading or inhuman"? The Court believes not. For reasons hereafter discussed, the implementing details of R.A. No. 8177 are matters which are properly left to the competence and expertise of administrative officials.[24]

Petitioner contends that Sec. 16[25] of R.A. No. 8177 is uncertain as to which "court" will fix the time and date of execution, and the date of execution and time of notification of the death convict. As petitioner already knows, the "court" which designates the date of execution is the trial court which convicted the accused, that is, after this Court has reviewed the entire records of the case[26] and has affirmed the judgment of the lower court. Thereupon, the procedure is that the "judgment is entered fifteen (15) days after its promulgation, and 10 days thereafter, the records are remanded to the court below including a certified copy of the judgment for execution.[27] Neither is there any uncertainty as to the date of execution nor the time of notification. As to the date of execution, Section 15 of the implementing rules must be read in conjunction with the last sentence of Section 1 of R.A. No. 8177 which provides that the death sentence shall be carried out "not earlier than one (1) year nor later then eighteen (18) months from the time the judgment imposing the death penalty became final and executory, without prejudice to the exercise by the President of his executive clemency powers at all times." Hence, the death convict is in effect assured of eighteen (18) months from the time the judgment imposing the death penalty became final and executory[28] wherein he can seek executive clemency[29] and attend to all his temporal and spiritual affairs.[30]

Petitioner further contends that the infliction of "wanton pain" in case of possible complications in the intravenous injection, considering and as petitioner claims, that respondent Director is an untrained and untested person insofar as the choice and administration of lethal injection is concerned, renders lethal injection a cruel, degrading and inhuman punishment. Such supposition is highly speculative and unsubstantiated.

First. Petitioner has neither alleged nor presented evidence that lethal injection required the expertise only of phlebotomists and not trained personnel and that the drugs to be administered are unsafe or ineffective.[31] Petitioner simply cites situations in the United States wherein execution by lethal injection allegedly resulted in prolonged and agonizing death for the convict,[32] without any other evidence whatsoever.

Second. Petitioner overlooked Section 1, third paragraph of R.A. No. 8177 which requires that all personnel involved in the execution proceedings should be trained prior to the performance of such task. We must presume that the public officials entrusted with the implementation of the death penalty (by lethal injection) will carefully avoid inflicting cruel punishment.[33]

Third. Any infliction of pain in lethal injection is merely incidental in carrying out the execution of death penalty and does not fall within the constitutional proscription against cruel, degrading and inhuman punishment. "In a limited sense, anything is cruel which is calculated to give pain or distress, and since punishment imports pain or suffering to the convict, it may be said that all punishments are cruel. But of course the Constitution does not mean that crime, for this reason, is to go unpunished."[34] The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.[35] Numerous federal and state courts of the United States have been asked to review whether lethal injections constitute cruel and unusual punishment. No court has found lethal injections to implicate prisoner's Eighth Amendment rights. In fact, most courts that have addressed the issue state in one or two sentences that lethal injection clearly is a constitutional form of execution.[36] A few jurisdictions, however, have addressed the merits of the Eighth Amendment claims. Without exception, these courts have found that lethal injection does not constitute cruel and unusual punishment. After reviewing the medical evidence that indicates that improper doses or improper administration of the drugs causes severe pain and that prison officials tend to have little training in the administration of the drugs, the courts have found that the few minutes of pain does not rise to a constitutional violation.[37]

What is cruel and unusual "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice" and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[38] Indeed, "[o]ther (U.S.) courts have focused on 'standards of decency' finding that the widespread use of lethal injections indicates that it comports with contemporary norms."[39] the primary indicator of society's standard of decency with regard to capital punishment is the response of the country's legislatures to the sanction.[40] Hence, for as long as the death penalty remains in our statute books and meets the most stringent requirements provided by the Constitution, we must confine our inquiry to the legality of R.A. No. 8177, whose constitutionality we duly sustain in the face of petitioner's challenge. We find that the legislature's substitution of the mode of carrying out the death penalty from electrocution to lethal injection infringes no constitutional rights of petitioner herein.

II. REIMPOSITION OF THE DEATH PENALTY LAW DOES NOT VIOLATE INTERNATIONAL TREATY OBLIGATIONS

Petitioner assiduously argues that the reimposition of the death penalty law violates our international obligations, in particular, the International Covenant on Civil And Political Rights, which was adopted by the General Assembly of the United Nations on December 16, 1996, signed and ratified by the Philippines on December 19, 1966 and October 23, 1986,[41] respectively.

Article 6 of the International Covenant on Civil and Political Rights provides:
"1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court." (emphasis supplied)

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all-cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State. Party to the present Covenant."
Indisputably, Article 6 of the Covenant enshrines the individual's right to life. Nevertheless, Article 6 (2) of the Covenant explicitly recognizes that capital punishment is an allowable limitation on the right to life, subject to the limitation that it be imposed for the "most serious crimes". Pursuant to Article 28 of the Covenant, a Human Rights Committee was established and under Article 40 of the Covenant, State parties to the Covenant are required to submit an initial report to the Committee on the measures they have adopted which give effect to the rights recognized within the Covenant and on the progress made on the enjoyment of those rights one year of its entry into force for the State Party concerned and thereafter, after five years. On July 27, 1982, the Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the Covenant stating that "(while) it follows from Article 6 (2) to (6) that State parties are not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the most serious crimes.' The article strongly suggests (pars. 2 (2) and (6) that abolition is desirable. xxx The Committee is of the opinion that the expression 'most serious crimes' must be read restrictively to mean that the death penalty should be a quite exceptional measure." Further, the Safeguards Guaranteeing Protection of Those Facing the Death Penalty[42] adopted by the Economic and Social Council of the United Nations declare that the ambit of the term 'most serious crimes' should not go beyond intentional crimes, with lethal or other extremely grave consequences.

The Optional Protocol to the International Covenant on Civil and Political Rights was adopted by the General Assembly of the United Nations on December 16, 1966, and signed and ratified by the Philippines on December 19, 1966 and August 22, 1989,[43] respectively. The Optional Protocol provides that the Human Rights Committee shall receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

On the other hand, the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly on December 15, 1989. The Philippines neither signed nor ratified said document.[44] Evidently, petitioner's assertion of our obligation under the Second Optional Protocol is misplaced.

III. THERE IS NO UNDUE DELEGATION OF LEGISLATIVE POWER IN R.A. NO. 8177 TO THE SECRETARY OF JUSTICE AND THE DIRECTOR OF BUREAU OF CORRECTIONS, BUT SECTION 19 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in the framing of our Constitution. Each department of the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its own sphere.[45] Corollary to the doctrine of separation of powers is the principle of non-delegation of powers. "The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest."[46] The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.[47]
Empowering the Secretary of Justice in conjunction with the Secretary of Health and the Director of the Bureau of Corrections, to promulgate rules and regulations on the subject of lethal injection is a form of delegation of legislative authority to administrative bodies.

The reason for delegation of authority to administrative agencies is the increasing complexity of the task of government requiring expertise as well as the growing inability of the legislature to cope directly with the myriad problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated problems that the legislature cannot be expected to attend to by itself. Specialization even in legislation has become necessary. On many problems involving day-to-day undertakings, the legislature may not have the needed competence to provide the required direct and efficacious, not to say, specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts in the particular fields assigned to them.[48]

Although Congress may delegate to another branch of the Government the power to fill in the details in the execution, enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that said law: (a) be complete in itself - it must set forth therein the policy to be executed, carried out or implemented by the delegate[49] - and (b) fix a standard - the limits of which are sufficiently determinate or determinable - to which the delegate must conform in the performance of his functions.[50]

Considering the scope and the definiteness of R.A. No. 8177, which changed the mode of carrying out the death penalty, the Court finds that the law sufficiently describes what job must be done, who is to do it, and what is the scope of his authority.[51]

R.A. No. 8177 likewise provides the standards which define the legislative policy, mark its limits, map out its boundaries, and specify the public agencies which will apply it. it indicates the circumstances under which the legislative purpose may be carried out.[52] R.A. No. 8177 specifically requires that "[t]he death sentence shall be executed under the authority of the Director of the Bureau of Corrections, endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution."[53] Further, "[t]he Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict."[54] The legislature also mandated that "all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task."[55] The Court cannot see that any useful purpose would be served by requiring greater detail.[56] The question raised is not the definition of what constitutes a criminal offense,[57] but the mode of carrying out the penalty already imposed by the Courts. In this sense, R.A. No. 8177 is sufficiently definite and the exercise of discretion by the administrative officials concerned is, to use the words of Justice Benjamin Cardozo, canalized within banks that keep it from overflowing.

Thus, the Court finds that the existence of an area for exercise of discretion by the Secretary of Justice and the Director of the Bureau of Corrections under delegated legislative power is proper where standards are formulated for the guidance and the exercise of limited discretion, which though general, are capable of reasonable application.[58]

It is also noteworthy that Article 81 of the Revised Penal Code which originally provided for the death penalty by electrocution was not subjected to attack on the ground that it failed to provide for details such as the kind of chair to be used, the amount of voltage, volume of amperage or place of attachment of electrodes on the death convict. Hence, petitioner's analogous argument with respect to lethal injection must fail.

A careful reading of R.A. No. 8177 would show that there is no undue delegation of legislative power from the Secretary of Justice to the Director of the Bureau of Corrections for the simple reason that under the Administrative Code of 1987, the Bureau of Corrections is a mere constituent unit of the Department of Justice.[59] Further, the Department of Justice is tasked, among others, to take charge of the "administration of the correctional system."[60] Hence, the import of the phraseology of the law is that the Secretary of Justice should supervise the Director of the Bureau of Corrections in promulgating the Lethal Injection Manual, in consultation with the Department of Health.[61]

However, the Rules and Regulations to Implement Republic Act No. 8177 suffer serious flaws that could not be overlooked. To begin with, something basic appears missing in Section 19 of the implementing rules which provides:
"SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after administering the lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain details of, among others, the sequence of events before and after execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system.

Said manual shall be confidential and its distribution shall be limited to authorized prison personnel."
Thus, the Courts finds in the first paragraph of Section 19 of the implementing rules a veritable vacuum. The Secretary of Justice has practically abdicated the power to promulgate the manual on the execution procedure to the Director of the Bureau of Corrections, by not providing for a mode of review and approval thereof. Being a mere constituent unit of the Department of Justice, the Bureau of Corrections could not promulgate a manual that would not bear the imprimatur of the administrative superior, the Secretary of Justice as the rule-making authority under R.A. No. 8177. Such apparent abdication of departmental responsibility renders the said paragraph invalid.

As to the second paragraph of section 19, the Court finds the requirement of confidentiality of the contents of the manual even with respect to the convict unduly suppressive. It sees no legal impediment for the convict, should he so desire, to obtain a copy of the manual. The contents of the manual are matters of public concern "which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen."[62] Section 7 of Article III of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transaction, or decisions, as well as to government research data used as a basis for policy development, shall be afforded the citizen, subject to such limitation as may be provided by law."
The incorporation in the Constitution of a guarantee of access to information of public concern is a recognition of the essentiality of the free flow of ideas and information in a democracy.[63] In the same way that free discussion enables members of society to cope with the exigencies of their time,[64] access to information of general interest aids the people in democratic decision-making[65] by giving them a better perspective of the vital issues confronting the nation.[66]

D. SECTION 17 OF THE RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177 IS INVALID FOR BEING DISCRIMINATORY AND CONTRARY TO LAW.

Even more seriously flawed than Section 19 is Section of the implementing rules which provides:
"SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. Execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death penalty shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for being discriminatory as well as for being an invalid exercise of the power to legislate by respondent Secretary. Petitioner insists that Section 17 amends the instances when lethal injection may be suspended, without an express amendment of Article 83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659.

Article 83 f the Revised Penal Code, as amended by section 25 of R.A. No. 7659 now reads as follows:
"ART. 83, Suspension of the execution of the death sentence.- The death sentence shall not be inflicted upon a woman while she is pregnant or within one (1) year after delivery, nor upon any person over seventy years of age. In this last case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalty provided in Article 40. x x x".
On this point, the Courts finds petitioner's contention impressed with merit. While Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the implementation of the death penalty while a woman is pregnant or within one (1) year after delivery, Section 17 of the implementing rules omits the one (1) year period following delivery as an instance when the death sentence is suspended, and adds a ground for suspension of sentence no longer found under Article 83 of the Revised Penal Code as amended, which is the three-year reprieve after a woman is sentenced. This addition is, in petitioner's view, tantamount to a gender-based discrimination sans statutory basis, while the omission is an impermissible contravention of the applicable law.

Being merely an implementing rule, Section 17 aforecited must not override, but instead remain consistent and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law."[67] An administrative agency cannot amend an act of Congress.[68] In case of discrepancy between a provision of statute and a rule or regulation issued to implement said statute, the statutory provision prevails. Since the cited clause in Section 17 which suspends the execution of a woman within the three (3) years next following the date of sentence finds no supports in Article 83 of the Revised Penal Code as amended, perforce Section 17 must be declared invalid.

One member of the Court voted to declare Republic Act. No. 8177 as unconstitutional insofar as it delegates the power to make rules over the same subject matter to two persons (the Secretary of Justice and the Director of the Bureau of Corrections) and constitutes a violation of the international norm towards the abolition of the death penalty. One member of the Court, consistent with his view in People v. Echegaray, 267 SCRA 682, 734-758 (1997) that the death penalty law (Republic Act. No. 7659) is itself unconstitutional, believes that Republic Act No. 8177 which provides for the means of carrying out the death sentence, is likewise unconstitutional. Two other members of the court concurred in the aforesaid Separate Opinions in that the death penalty law (Republic Act No. 7659) together with the assailed statute (Republic Act No. 8177) are unconstitutional. In sum, four members of the Court voted to declare Republic Act. No. 8177 as unconstitutional. These Separate Opinions are hereto annexed, infra.

WHEREFORE, the petition is DENIED insofar as petitioner seeks to declare the assailed statute (Republic Act No. 8177) as unconstitutional; but GRANTED insofar as Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are concerned, which are hereby declared INVALID because (a) Section 17 contravenes Article 83 of the Revised Penal Code, as amended by Section 25 of the Republic Act No. 7659; and (b) Section 19 fails to provide for review and approval of the Lethal Injection Manual by the Secretary of Justice, and unjustifiably makes the manual confidential, hence unavailable to interested parties including the accused/convict and counsel. Respondents are hereby enjoined from enforcing and implementing Republic Act No. 8177 until the aforesaid Sections 17 and 19 of the Rules and Regulations to Implement Republic Act No. 8177 are appropriately amended, revised and/or corrected in accordance with this Decision.

NO COSTS.

SO ORDERED.

Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.
Narvasa, C.J., On official leave
Pardo, J., No part.
See Per Curiam’s Dissenting Opinion A and B


[1] People v. Echegaray, G.R. No. 117472, 257 SCRA 561 [1996]. The lower Court decision was penned by Judge Maximiano C. Asuncion.

[2] AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR THAT PURPOSE THE REVISED PENAL CODE, AS AMENDED, OTHER SPECIAL LAWS, AND FOR OTHER PURPOSES, which took effect on December 31, 1993; People v. Simon, 234 SCRA 555, 569 [1994].

[3] People v. Echegaray, G.R. No. 117472, 267 SCRA 682 [1997].

[4] Records of the Senate, October 5, 1995, p. 48. Senator Ernesto F. Herrera explained that: "The present prescribed method in carrying out capital punishment is death by electrocution. This will later be changed to gas poisoning, as provided by Sec. 24 of R.A. No. 7659, as soon as the Bureau of Corrections can have the proper facilities for the purpose.

There would not have been any problem had the old electric chair been saved from fire in the New Bilibid Prison that totally destroyed it. Without an electric chair or gas chamber, our penal system today has no means of implementing the death sentence. The very high cost needed for the replacement of the electric chair and the building of a gas chamber bogs down the whole process. This is, indeed, the appropriate time to introduce lethal injection as a new means of carrying out the death penalty. This method is less expensive, more humane, easier to administer and conveniently more portable."

[5] Published in the Manila Times on March 23, 1996.

[6] Published in the Philippine Star on May 23, 1998.

[7] RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177, Section 19.

[8] Rollo, p. 3.

[9] Rollo, p. 49.

[10] Rollo, p. 51.

[11] Through then Solicitor-General Romeo C. de la Cruz, Assistant Solicitors-General Pio C. Guerrero and Antonio G. Castro, and Solicitor-General Evelyn C. Balgos-Guballa.

[12] Rollo, p. 102.

[13] Through Commissioner Jorge R. Coquia and Director Emmanuel C. Neri.

[14] Rollo, p. 129.

[15] Rollo, p. 136.

[16] Annex "A" to the Petition to Intervene and/or Appear as Amicus Curiae, Rollo, p. 151.

[17] Rollo, p. 157.

[18] Amended and Supplemental Petition, Rollo, pp. 55-81.

[19] U.S. v. Borromeo, 23 Phil, 285-286 [1912].

[20] Bernas, J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., p., 501; I RECORD 707-8.

[21] Comment of the Solicitor-General, Rollo, p. 115; Rules and Regulations to Implement Republic Act No. 8177, Sections 2(b), 15, 20-22; Bureau of Corrections Lethal Injection Manual, pp. 13-22.

[22] People v. Echegaray, 267 SCRA 682, 694 [1997]; People v. Marcos, 147 SCRA 204, 216 [1987]; People v. Puda, 133 SCRA 1, 13 [1984]; People v. Camano, 115 SCRA 688, 702 [1982]; Harden v. Director of Prisons, 81 Phil. 741, 747 [1948].

[23] 81 Phil. At 747, citing In Ex Parte Kemmler, 136 U.S. 436.

[24] Records of the Senate, January 29, 1996, pp. 15, 13:

Senator Macapagal. I notice that the bill does not specify exactly what drug, chemical, or combination of drug and chemical is to be administered. Is my impression correct, Mr. President?

Senator Maceda. Yes, Mr. President. Precisely, those are the kinds of details that are better left to the Executive department to implement by administrative regulation. (emphasis supplied)

Senator Macapagal. Therefore, it would be up to the Director of the Bureau of Corrections to choose the drugs or chemicals to be used. Is that correct, Mr. President?

Senator Maceda. I would think this is a matter that would be initiated by the Director of the Bureau of Corrections. But following established procedure, it will have to be with the approval of the Secretary of Justice.

xxx

Senator Macapagal. And as far as the procedure is concerned, the bill does not also state exactly how the execution is to be carried out, or the procedure to be used. Is there no intention or would it not be more pragmatic for the law to provide the procedure to be undertaken in carrying out the execution in order to lessen the possibility of negligence during the actual execution?

Senator Maceda. We felt, Mr. President, that when it comes to the details of the procedure, it would be better to leave it to administrative regulation. After all, the main import of the law really is to change the method of execution from the "electric chair" to "lethal injection." (emphasis supplied)

[25] Sec. 16. NOTIFICATION AND EXECUTION OF THE SENTENCE AND ASSISTANCE TO THE CONVICT. - The court shall designate a working day for the execution of the death penalty but not the hour thereof. Such designation shall only be communicated to the convict after sunrise of the day of the execution, and the execution shall not take place until after the expiration of at least eight (8) hours following the notification, but before sunset. - During the interval between the notification and execution, the convict shall, as far as possible, be furnished such assistance as he may request in order to be attended in his last moments by a priest or minister of the religion he professes and to consult his lawyers, as well as in order to make a will and confer with members of his family or of persons in charge of the management of his business, of the administration of his property, or of the care of his descendants.

[26] As mandated by Article VIII Section 5 (2) (d) of the 1987 Constitution, and Section 3 (e) of Rule 122, Rules on Criminal Procedure.

[27] Sections 10 and 11 of Rule 51 of the 1997 Rules of Civil Procedure in relation to Section 17 of Rule 124 of the Rules on Criminal Procedure.

[28] In G.R. No. 117472, we issued an en banc resolution dated September 2, 1997, wherein we held that: "xxx In criminal cases, Section 7 of Rule 120 of the Rules on Criminal Procedure states the circumstances when a judgment becomes final. However, we cannot specifically apply these tenets to judgments imposing the death penalty which is imposed or affirmed by this Court itself since, obviously, no appeal lies therefrom. Thus, it is only but proper that a judgment of this Court imposing the death sentence becomes final and executory after the expiration of fifteen (15) days from service of a copy thereof on counsel of the accused-appellant, or on the latter if so ordered by this Court, and no motion for reconsideration or, where allowed by this Court, a motion for new trial [see Helmuth, Jr. v. People, 112 SCRA 573 [1982]; People v. Amparado, 156 SCRA 712 [1987]] has been filed by accused-appellant, or no ground has supervened which would justifiably interrupt or warrant the suspension of the running of the reglementary period for finality. Where a motion for reconsideration has been filed and denied, the finality of such resolution shall be substantially subject to the same rule." Records, pp. 308-309.

[29] Records of the Senate, January 29, 1996, pp. 8-9.:

Senator Drilon. xxx [O]n page 2 of Senate Bill No. 436, it is provided here that the death sentence shall be carried out not later than one year after the judgment has become final. I would just like to get a confirmation from the distinguished Sponsor if this provision will not in any way interfere with or diminish the constitutional power of the President to reduce or commute or grant pardon to convicts who are sentenced to death through lethal injection as provided under this bill.

Senator Maceda. No, Mr. President, it would not diminish the power of the President. I would express the view at this time that while we hope that the President will make such judgment within the one-year period, I would take the view that if within the one-year period or near the end of the expiration of the one-year period he were to issue a suspension or commutation, then certainly the constitutional power lodged in him cannot be diminished by legislation.

Senator Drilon. Can the President commute a death penalty to life imprisonment after one year, from the time the judgment has become final?

Senator Maceda. I would say that as long as the convict is not yet dead or executed, then the President still retains that power.

[30] RULES AND REGULATIONS TO IMPLEMENT R.A. NO. 8177, Sections 4, 6-9 provide

Sec. 4. PRISON SERVICES. - Subject to the availability of resources, a death convict shall enjoy the following services and privileges to encourage and enhance his self-respect and dignity:

a. Medical and Dental;

b. Religious, Guidance and Counselling;

c. Exercise;

d. Visitation; and

e. Mail.

xxx

Sec. 6. RELIGIOUS SERVICES. - Subject to security conditions, a death convict may be visited by the priest or minister of his faith and given such available religious materials which he may require.

Sec. 7. EXERCISE. - A death convict shall be allowed to enjoy regular exercise periods under the supervision of a guard.

Sec. 8. MEAL SERVICES.- Meals shall, whenever practicable, be served individually to a death convict outside his cell. Mess utensils shall be made of plastic. After each meal, said utensils shall be collected and accounted.

Sec. 9. VISITATION. - A death convict shall be allowed to be visited by his immediate family and reputable friends at regular intervals and during designated hours subject to security procedures.

In addition, Article 82 of the Revised Penal Code provides: "xxx During the interval between the notification and the execution, the culprit shall, in so far as possible, be furnished such assistance as he may request in order to be attended in his last moments by priests or ministers of the religion he professes and to consult lawyers, as well as in order to make a will and confer with members of his family or persons in charge of the management of his business, of the administration of his property, or of the care of his descendants."

[31] See Woolls v. McCotter, 798 F.2d 695, 698 (5TH Cir. 1986), wherein the U.S. Court of Appeals held that "First, the appellant has not even alleged, much less produced any evidence, that the Texas Department of Corrections allows anyone other than trained medical personnel to administer lethal injections. Second, the appellant has neither alleged nor produced evidence that would indicate that improper dosages of sodium thiopental have been or will be administered so as to result in physical or mental pain. Finally, even if the physical and mental manifestations noted by Dr. Hodes were experienced by an individual, this showing "of discomfort or unnecessary pain" falls far short of the showing found insufficient in Gray v. Lucas, [710 f2d. 1048, 1057-61 (5TH Cir.), cert. Denied, 463 U.S. 1237, 104 S. Ct. 211, 77 L.Ed. 2d 1453 (1983)]." O'Bryan, 729 F.2d at 994. Woolls has failed to make a substantial showing of the denial of his right to be free from cruel and unusual punishment under the eighth amendment."

[32] Amended and Supplemental Petition, Rollo, pp. 65-67.

[33] See State of Nevada v. Gee Jon, 46 Nev. 418, 211 P. 676, 682, 30 A.L.R. 1443, 1450-1451 [1923].

[34] American Law Reports, Annotated, 30 A.L.R. 1452 at 1453.

[35] Ex Parte Granviel, 561 S.W. 2d 503, 509 [1978], citing Lousiana ex. rel. Francis v. Resweber, 329 U.S. 459, 464, 67 S. Ct. 374, 376, 91 L.Ed. 422 (1947).

[36] 19 Thomas Jefferson Law Review (Spring 1997), 1-38, at 31-32., citing Kelly v. Lynaugh, 862 F. 2d 1126, 1135 (5TH Cir., 1988) ("Finally, Kelly argues against lethal injection as a method of execution, arguing that it is cruel and unusual punishment, especially when administered by an unqualified person. Again, "[w]e have rejected this argument"); O' Bryan v. McKaskle, 729 F.2d 991, 994 (5TH Cir. 1984) ("[w]e agree with the state that the showing made by O'Bryan of discomfort or unnecessary pain falls short of the showing found insufficient in Gray v. Lucas"); Silagy v. Peters, 713 F.Supp. 1246, 1258 (C.D. III, 1989 ("The petitioner claims that lethal injection is cruel and unusual punishment. There is nothing in the record that supports that contention."); State v. Moen, 786 P.2d. 111, 143 (Ore. 1990); Hopkinson v. State, 798 P.2d 1186, 1187 (Wyo. 1990).

[37] Supra. at 32, citing Woolls v. McCotter, 798 F.2d 695 (5TH Cir. 1986) (holding that the use of sodium thiopental for executions, although it may cause conscious death by suffocation, is not cruel and unusual); LaGrand v. Lewis, 883 F. Supp. 469, 469-71 (D. Ariz. 1995) (reviewing affidavits of physicians and prison execution protocols); Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark. 1992) (holding that, when the executioner has difficulty locating a vein, multiple insertions of the needle do not constitute a cruel and unusual punishment).

[38] Ex Parte Granviel, supra. at 509, citing Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 2 L.Ed. 2d 630 (1958). See also Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251, 258-259 (1976).

[39] 19 Thomas Jefferson Law Review (Spring 1997) at 32-33, citing LaGrand v. Lewis, 883 F.Supp. 469, 471 (D. Ariz. 1995) (holding that lethal injection comports with societal norms based on the fact that 26 states and the federal government have adopted this method of execution); State v. Deputy, 644 A.2d 411, 421 (Del. 1994) (surveying that 28 of 37 States permitting capital punishment permit the use of lethal injection); Delaware v. Gattis, 1995 WL 790961, at *21 (Del. Super. 1995) (holding that the AMA's ethical ban on physician's assisting at executions does not provide evidence of society's evolving standards of decency).

[40] 66 The George Washington Law Review (November 1997, No. 1) 84 at 100, citing Stanford v. Kentucky, 492 U.S. 361, 370-371 (1989) (plurality opinion) ("(F)irst among the "objective indicia that reflect the public attitude toward a given sanction" are statutes passed by society's elected representatives." (quoting McClesky, 481 U.S. at 300 (quoting Gregg, 428 U.S. at 173))); Thompson, 487 U.S. at 849 (O'Connor, J., concurring) ("[The] decisions of the [American legislatures] should provide the most reliable signs of a society-wide consensus on this issue."); Gregg, 428 U.S. at 175-176) ("[T]he constitutional test [in judging a punishment under the Cruel and Unusual Punishments Clause] is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards.)"; Furman, 408 U.S. at 436-37 (Powell, J., dissenting) ("In a democracy the first indicator of the public's attitude must always be found in the legislative judgments of the people's chosen representatives.").

[41] Multilateral Treaties Deposited with the Secretary-General Status as at 31 December 1994, United Nations, New York, p. 117; United Nations, Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407; Human Rights, International Instruments, Chart of Ratifications as at 31 December 1997, United Nations, p. 8.

[42] The Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty was adopted by Economic and Social Council resolution 1984-50 of May 25, 1984. The Safeguards provide:

"1. In countries which have not abolished the death penalty, capital punishment may be imposed only for the most serious crimes, it being understood that their scope should not go beyond intentional crimes with lethal or other extremely grave consequences.

2. Capital punishment may be imposed only for a crime for which the death penalty is prescribed by law at the time of its commission, it being understood that if, subsequent to the commission of the crime, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

3. Persons below 18 years of age at the time of the commission of the crime shall not be sentenced to death, nor shall the death sentence be carried out on pregnant women, or on new mothers, or on persons who have become insane.

4. Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.

5. Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in Article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings.

6. Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction, and steps should be taken to ensure that such appeals shall become mandatory.

7. Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence; pardon or commutation of sentence may be granted in all cases of capital punishment.

8. Capital punishment shall not be carried out pending any appeal or other recourse procedure or other proceeding relating to pardon or commutation of the sentence.

9. Where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering."

[43] Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1994, United Nations, New York, 1995, p. 153; United Nations Treaty Series, vol. 999, p. 171; Human Rights, International Instruments, Chart of Ratifications as at 31 December 1997, United Nations, p. 8.

[44] Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1994, United Nations, New York; United Nations, Doc. A/RES/44/128; Human Rights, International Instruments, Chart of Ratifications as at 31 December 1997, United Nations, p. 8.

[45] See Angara v. Electoral Commission, 63 Phil. 139, 156 [1936].

[46] Defensor-Santiago v. Commission on Elections, 270 SCRA 106, 153 [1997], citing People v. Rosenthal, 68 Phil. 328 [1939]; ISAGANI A. CRUZ, Philippine Political Law 86 [1996].

[47] Id., citing People v. Vera, 65 Phil. 56 [1937]; CRUZ, supra. 87.

[48] See Eastern Shipping Lines, Inc. v. POEA, 166 SCRA 533, 544 [1988].

[49] Pelaez v. Auditor-General, 15 SCRA 569, 576-577 [1965], citing Calalang v. Williams, 70 Phil. 726; Pangasinan Transp. Co. v. Public Service Commission, 70 Phil. 221; Cruz v. Youngberg, 56 Phil. 234; Alegre v. Collector of Customs, 53 Phil. 394; Mulford v. Smith, 307 U.S. 38.

[50] Id., citing People v. Lim Ho, L-12091-2, January 28, 1960; People v. Jolliffee, L-9553, May 13, 1959; People v. Vera, 65 Phil. 56; U.S. v. Ang Tang Ho, 43 Phil. 1; Compañia General de Tabacos v. Board of Public Utility, 34 Phil. 136; Mutual Film Co. v. Industrial Commission, 236 U.S. 247, 59 L. Ed., 561; Mutual Film Co. v. Industrial Commission, 236 U.S. 230, 59 L. Ed. 552; Pamana Refining Co. v. Ryan, 293 U.S. 388, 79 L. Ed..446; A.L.A. Schecter Poulty Corp. v. U.S., 295 U.S. 495, 79 L. Ed. 1446; Bowles v. Willingham, 321 U.S. 503, 88 L. Ed. 892; Araneta v. Gatmaitan, L-8895, April 30, 1957; Cervantes v. Auditor-General, L-4043, May 26 1952; Phil. Association of Colleges v. Sec. Of Education, 51 Off. Gaz. 6230; People v. Arnault, 48 Off. Gaz. 4805; Antamok Gold Fields v. CIR, 68 Phil. 340; U.S. v. Barrias, 11 Phil. 327; Yakus v. White, 321 U.S. 414; Ammann v. Mailonce, 332 U.S. 245.

[51] See Edu v. Ericta, 35 SCRA 481, 496 [1970].

[52] Id. at 497.

[53] R.A. No. 8177, Sec. 1, first paragraph.

[54] Id., second paragraph.

[55] Id., third paragraph.

[56] State v. Gee Jon, 46 Nev. 418, 211 P. 676, 682, 30 A.L.R. 1443, 1451 (1923).

[57] Ex Parte Granviel, supra. at 513 citing citing Langford v. State, 532 S.W.2d 91, 94 (Tex. Cr.App. 1976).

[58] Id., at 514 citing Nichols v. Dallas, 347 S.W.2d 326 (Tex.Civ.App. - Dallas, 1961).

[59] Section 4 of Chapter I, Title III of the Administrative Code of 1987 provides:

"SEC. 4. Organizational structure. - The Department (of Justice) shall consist of the following constituent units:

(1) Department proper;

(2) Office of the Government Corporate Counsel;

(3) National Bureau of Investigation;

(4) Public Attorney's Office;

(5) Board of Pardons and Parole;

(6) Parole and Probation Administration;

(7) Bureau of Corrections;

(8) Land Registration Authority;

(9) Commission on the Settlement of Land Problems."

[60] Section 1 of Chapter I, Title III of the Administrative Code of 1987 provides:

"SEC. 1. Declaration of Policy. - It is the declared policy of the State to provide the government with a principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the crimes, prosecution of offenders and administration of the correctional system; implement the laws on the admission and stay of aliens, citizenship, land titling system, and settlement of land problems involving small landowners and members of indigenous cultural minorities; and provide free legal services to indigent members of the society."

[61] Section 3 of R.A. No. 8177 provides:

"SEC. 3. Implementing Rules. - The Secretary of Justice in coordination with the Secretary of Health and the Bureau of Corrections shall, within thirty (30) days from the effectivity of this Act, promulgate the rules to implement its provisions."

[62] Legaspi v. Civil Service Commission, 150 SCRA 530, 541 [1987]

[63] Id. at 540, citing Baldoza v. Dimaano, Adm, Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14.

[64] Id., citing Thornill v. Alabama, 310 U.S. 88, 102 [1939].

[65] Id., citing 87 Harvard Law Review 1505 [1974].

[66] Id.

[67] Grego v. Commission on Elections, 274 SCRA 481, 498 [1997], citing Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 [1995].

[68] Id. At 498-499, citing Miners Association of the Philippines, Inc. v. Factoran, Jr., 240 SCRA 100 [1995], further citing Santos v. Estenzo, 109 Phil. 419, 422 (1960); Teoxon v. Members of the Board of Administrators, 33 SCRA 585 [1970]; Manuel v. General Auditing Office, 42 SCRA 660 [1971], Deluao v. Casteel, 29 SCRA 350 [1969].

DISSENTING OPINION

Consistent with my view that Republic Act 7659, the Death Penalty Law, is unconstitutional,[1] I believe that RA 8177, the Lethal Injection Law, has likewise no place in our statute books.

Power to Legislate for a Constitutional

Purpose Includes Power to Prescribe

Means of Achieving It

By virtue of its inherent legislative powers and particularly Section 19 (1), Article III of the Constitution, stating in part that "[n]either shall death penalty be imposed unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it," Congress enacted RA 7659 imposing death penalty on certain crimes it perceived as heinous.

Of late, the legislature has also seen fit to alter the method of carrying out the capital punishment, from electrocution[2] to lethal injection, via RA 8177, the constitutionality of which is herein questioned.

Concededly, it is a settled principle in constitutional law that a government which has the right to do an act and the duty of performing that act must necessarily be allowed to select the means of reasonably accomplishing it.[3] Based on the doctrine of implied powers of State, Congress has the authority to prescribe the means to carry into effect the rights expressly given and the duties expressly enjoined by the Constitution. The end being required, it is deemed a just and necessary implication that the means to accomplish it is given also.[4]

Unconstitutionality of
Death Penalty Law


However, the end sought to be fulfilled and the means prescribed to accomplish such end must still pass the tests of constitutionality and validity.[5] More important, the ultimate goal must be clearly within the scope of the Constitution.

In my 32-page Dissenting Opinion[6] on the Court's February 7, 1997 Resolution denying Echegaray's Motion for Reconsideration, I submitted that Congress, in enacting RA 7659, failed to discharge its constitutional burden of proving the existence of "compelling reasons" to prescribe death for "heinous" crimes. In batting for the unconstitutionality of said statute, I summarized (towards the end) my reason as follows:
"1.  The 1987 Constitution abolished the death penalty from our statute books. It did not merely suspend or prohibit its imposition.

"2.  The Charter effectively granted a new right; the constitutional right against the death penalty, which is really a species of the right to life.

"3.  Any law reviving the capital penalty must be strictly construed against the State and liberally in favor of the accused, because such a statute denigrates the Constitution, impinges on a basic right and tends to deny equal justice to the underprivileged.

"(4) Every word or phrase in the Constitution is sacred and should never be ignored, cavalierly treated or brushed aside.

"(5) Congressional power to prescribe death is severely limited by two concurrent requirements:

"(a) First, Congress must provide a set of attendant circumstances which the prosecution must prove beyond reasonable doubt, apart from the elements of the crime and itself. Congress must explain why and how these circumstances define or characterize the crime as 'heinous.'

"(b) Second, Congress has also the duty of laying out clear and specific reasons which arose after the effectivity of the Constitution compelling the enactment of the law. It bears repeating that these requirements are inseparable. They must both be present in view of the specific constitutional mandate -- 'for compelling reasons involving heinous crimes.' The compelling reason must flow from the heinous nature of the offense.

"(6)  In every law reviving the capital penalty, the heinousness and compelling reasons must be set out for each and every crime, and not just for all crimes generally and collectively."
Where End Sought Is
Unconstitutional, so Is
The Means to Achieve It


Because of the unconstitutionality-of the Death Penalty Law, I cannot hold for the legality of RA 8177. The only purpose of RA 8177 is to have a means of carrying out the death sentence -- by lethal injection. But if RA 7659 is inconsistent with the letter and the spirit of the Constitution, essentially, there is nothing to implement. With the abolition of the death penalty in 1987 Constitution, any means to carry it out is without any basis and, therefore, is illegal. It is definitely beyond the scope of the fundamental law. The spring cannot rise higher that its source.

Parenthetically, I believe that Article 81 of the Revised Penal Code, which provides that the death sentence shall be executed by electrocution, has been repealed with the ratification of the 1987 Charter. Having abrogated the extreme penalty of death, the Constitution must have necessarily abandoned the means by which the sentence was then enforced. Until and unless Congress passes a new law that fulfills the requirements laid down by the 1987 Constitution, no death penalty can be imposed and no means for its enforcement can be legally adopted.

WHEREFORE, I vote to grant the Petition and to declare RA 8177 unconstitutional.


[1] See Dissenting Opinion in People v. Echegaray, 267 SCRA 682, 734-758, February 7, 1997.

[2] Art. 81 of the Revised Penal Code, is amended by §24 of RA 7659.

[3] M'Cullock v. Maryland, 4 L ed 579.

[4] Prigg v. Pennsylvania, 10 L ed 1060.

[5] See Ruddi v. Rossi, 248 US 104; First National Bank v. Fellows, 244 US 416; Fair Bank v. US, 181 US 283: "Let the end be legitimate, let it be within the scope if the Constitution, and all means which are proper, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution are constitutional."

[6] Supra.

DISSENTING OPINION

On March 20, 1996, Republic Act No. 8177 was signed into law. Entitled "An Act Designating Death by Lethal Injection as a Method of Carrying Out Capital Punishment, Amending For the Purpose of Article 81 of the Revised Penal Code, As Amended by Section 24 of Republic Act No. 7659," it reads:
"SECTION 1. Article 81 of the Revised Penal Code, as amended by Section 24 of Republic Act No. 7659 is hereby further amended to read as follows:

'Art. 81. When and how the death penalty is to be executed. - The death sentence shall be executed with preference to any other penalty and shall consist in putting the person under the sentence to death by lethal injection. The death sentence shall be executed under the authority of the Director of the Bureau of Corrections endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution.

The Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict.

Pursuant to this all personnel involved in the administration of lethal injection shall be trained prior to the performance of such task.

The authorized physician of the Bureau of Corrections after thorough examination, shall officially make a pronouncement of the convict's death and shall certify thereto in the records of the Bureau of Corrections.

The death sentence shall be carried out not earlier than one (1) year nor later than eighteen (18) months after the judgment has become final and executory without prejudice to the exercise by the President of his executive clemency powers at all times.'

"SEC. 2. Persons already sentenced by judgment, which has become final and executory, who are waiting to undergo the death penalty by electrocution or gas poisoning shall be under the coverage of the provisions of this Act upon its effectivity. Their sentence shall be automatically modified for this purpose.

"SEC. 3. Implementing Rules. The Secretary of Justice in coordination with the Secretary of Health and Bureau of Corrections shall, within thirty (30) days from the effectivity of this Act, promulgate the rules to implement its provisions.

"SEC. 4. Repealing Clause. - All laws, presidential decrees and issuances, executive orders, rules and regulations or parts thereof inconsistent with the provisions of this Act are hereby repealed or modified accordingly.

"SEC. 5. Effectivity. - This Act shall take effect fifteen (15) days after its publication in the Official Gazette or in at least two (2) national newspapers of general circulation, whichever comes earlier. Publication shall not be later than ten (10) days after the approval thereof.

Approved."
On April 28, 1997, the Secretary of Justice Teofisto T. Guingona, Jr., promulgated the Rules of Regulation to Implement Republic Act No. 8177. They provide:
"RULES AND REGULATIONS TO

IMPLEMENT REPUBLIC ACT NO. 8177

Pursuant to Section 3 of Republic Act No. 8177 entitled 'AN ACT DESIGNATING DEATH BY LETHAL INJECTION AS THE METHOD OF CARRYING OUT CAPITAL PUNISHMENT, AMENDING FOR THE PURPOSE ARTICLE 81 OF THE REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF REPUBLIC ACT NO. 7659', the undersigned, in coordination with the Secretary of Health and the Director of Corrections, hereby issues the following Rules to govern the implementation of said Act:

SECTION 1. OBJECTIVES. - These Rules seek to ensure the orderly and humane execution of the death penalty by lethal injection.

SEC. 2 DEFINITION OF TERMS. - As used in these Rules, unless the context otherwise requires -

a.              'Death Convict' or 'Convict' shall refer to a prisoner whose death penalty imposed by Regional Trial Court is affirmed by the Supreme Court en banc;

b.              'Lethal Injection' refers to sodium thiopenthotal, pancuronium bromide, potassium chloride and such other lethal substances as may be specified by the Director of Corrections that will be administered intravenously into the body of a convict until said convict is pronounced dead;

c.              'Bureau' refers to the Bureau of Corrections;

d.              'Director' refers to the Director of the Bureau of Corrections;

e.              'Secretary' refers to the Secretary of the Department of Justice.

SEC. 3. PRINCIPLES. - The following principles shall be observed in the implementation of these Rules:

a.              There shall be no discrimination in the treatment of a death convict on account of race, color, religion, language, politics, nationality, social origin, property, birth or other status.

b.              In the execution of a death penalty, the death convict shall be spared from unnecessary anxiety or distress.

c.              The religious belief of the death convict shall be respected.

SEC. 4. PRISON SERVICES. - Subject to the availability of resources, a death convict shall enjoy the following services and privileges to encourage and enhance his self-respect and dignity:

a.              Medical and Dental;

b.              Religious, Guidance and Counseling;

c.              Exercise

d.              Visitation; and

e.              Mail.

SEC. 5. CONFINEMENT. - Whenever practicable, the death convict shall be confined in an individual cell in a building that is exclusively assigned for the use of death convict. The convict shall be provided with a bunk, a steel/wooden bed or mat, a pillow or blanket and mosquito net.

SEC. 6. RELIGIOUS SERVICES. - Subject to security conditions, a death convict may be visited by the priest or minister of his faith and given such available religious materials which he may require.

SEC. 7. EXERCISE. - A death convict shall be allowed to enjoy regular exercise periods under the supervision of a guard.

SEC. 8. MEAL SERVICES - Meals shall, whenever practicable, be served individually to a death convict inside his cell. Mess utensils shall be made of plastic. After each meal, said utensils shall be collected and accounted.

SEC. 9. VISITATION - A death convict shall be allowed to be visited by his immediate family and reputable friends at regular intervals and during designated hours subject to security procedures.

SEC. 10. LIST OF VISITORS. - A list of persons who may visit a death convict shall be compiled and maintained by the prison authorities. The list may include the members of the convict's immediate family such as his parents, step parents, foster parents, brothers and sisters, wife or husband and children. The list may, upon the request of convict, include his grandparents, aunts, uncles, in-laws and cousins. Other visitors may, after investigation, be included in the list if it will assist in raising the morale of the convict.

SEC. 11. INTERVIEWS OF CONVICTS. - Television, radio and other interviews by media of a death convict shall not be allowed.

SEC. 12. HANDLING OF INMATE MAIL. - The sending and receiving of mail by death convict shall be controlled to prevent illicit communication. Mail shall be censored in accordance with existing prison rules.

SEC. 13. OUTSIDE MOVEMENT. - A death convict may be allowed to leave his place of confinement only for diagnosis of a life-threatening situation or treatment of a serious ailment, if the diagnosis cannot be done or the treatment provided in the prison hospital.

SEC. 14. COURT APPEARANCE. - A death convict shall not be brought outside the penal institution where he is confined for appearance or attendance in any court except when the Supreme Court authorizes, upon proper application, said outside movement. A judge who requires the appearance or attendance of a death convict in any judicial proceeding shall conduct such proceeding within the premises of the penal institution where the convict is confined.

SEC. 15. HOW LETHAL INJECTION IS TO BE ADMINISTERED. - The execution of the death sentence by lethal injection shall be done under the authority of the Director who shall endeavor to mitigate the sufferings of the convict prior to and during the execution.

SEC. 16. NOTIFICATION AND EXECUTION OF THE SENTENCE AND ASSISTANCE TO THE CONVICT. - The court shall designate a a working day for the execution of the death penalty but not the hour thereof. Such designation shall only be communicated to the convict after sunrise of the day of execution, and the execution shall not take place until the expiration of at least eight (8) hours following the notification, but before sunset. During the interval between notification and execution, the convict shall, as far as possible, be furnished such assistance as he may request in order to be attended in his last moments by a priest or minister of the religion he professes and to consult his lawyers, as well as in order to make a will and confer with members of his family or of persons in charge of the management of his business, of the administration of his property, or of the care of his descendants.

SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE. - Execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age. In this latter case, the death sentence shall be commuted to the penalty of reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code.

SEC. 18. PLACE OF EXECUTION. - The execution by lethal injection shall take place in the prison establishment and space thereat as may be designated by the Director. Said place shall be closed to public view.

SEC. 19. EXECUTION PROCEDURE. - Details of the procedure prior to, during and after administering the lethal injection shall be set forth in a manual to be prepared by the Director. The manual shall contain details of, among others, the sequence of events before and after the execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system.

Said manual shall be confidential and its distribution shall be limited to authorized prison personnel.

SEC. 20. QUANTITY AND SAFEKEEPING OF DRUGS PURCHASED. - The exact quantities of the drug needed for an execution of a death penalty shall be purchased by the Director pursuant to existing rules and regulations not earlier than ten (10) days before the scheduled date of execution. The drugs shall be kept securely at the office of the superintendent of the prison where the death sentence is to be executed. All unused drugs shall be inventoried and disposed of properly under the direct supervision of the Director.

SEC. 21. ADMINISTERING LETHAL DRUGS. - The injection of the lethal drugs to a death convict shall be made by a person designated by the Director.

SEC. 22. IDENTITY OF PERSON ADMINISTERING LETHAL INJECTION. - The identity of the person who is designated to administer the lethal injection shall be kept secret.

SEC. 23. PERSONS WHO MAY WITNESS EXECUTION. - The execution of a death convict shall be witnessed only by the priest or minister assisting the offender and by his lawyers, and by his relatives, not exceeding six, if the convict so desires, by the physician and the necessary personnel of the penal establishment, and by such persons as the Director may authorize.

A person below eighteen (18) years of shall not be allowed to witness an execution.

SEC. 24. EXPULSION OF WITNESS. - Any person who makes unnecessary noise or displays rude or improper behavior during an execution shall be expelled from the lethal injection chamber.

SEC. 25. NON-RECORDING OF EXECUTION. - The Director shall not allow the visual, sound or other recording of the actual execution by media or by any private person or group.

SEC. 26. DISPOSITION OF CORPSE OF CONVICT. - Unless claimed by his family, the corpse of a death convict shall, upon the completion of the legal proceedings subsequent to the execution, be turned over to an institution of learning or scientific research first applying for it, for it, for the purpose of study and investigation, provided that such institution shall take charge of the decent burial of the remains. Otherwise, the Director shall order the burial of the body of the convict at government expense, granting permission to be present thereat to the members of the family of the convict and the friends of the latter. In no case shall the burial of a death convict be held with pomp.

SEC. 27. EFFECTIVITY. - These Rules shall take effect fifteen (15) days after publication in a newspaper of general circulation.

APPROVED.

28 April 1997

(Sgd.)

TEOFISTO T. GUINGONA, JR.

Secretary"
Petitioner's conviction for the heinous crime of rape has been affirmed by this Court.[1] To stave off his execution, petitioner now contends: (1) death by lethal injection is unconstitutional for being cruel, degrading, and inhuman punishment; (2) the death penalty violates the International Covenant on Civil and Political Rights, which is part of the law of the land; (3) R.A. No. 8177 unduly delegates legislative power to respondent Director; (4) respondent Secretary unlawfully delegated the legislative power delegated to him under R.A. No. 8177 to respondent Director; and (5) respondent Secretary exceeded the authority delegated to him under R.A. No. 8177 and unlawfully usurped the power to legislate in promulgating the questioned rules.

With due respect to the majority, I agree with the petitioner an submit the following propositions, viz:

I

R.A. NO. 8177 Is Void As It Delegates The Power To
Make Rules Over The Same Subject Matter To Two Persons


R.A. No. 8177 is unprecedented in our annals of lawmaking. A careful reading will show that it actually authorizes two persons to promulgate rules and regulations to implement its provisions - one, the Secretary of Justice and the other, the Director of the Bureau of Corrections. The delegated power of the Secretary of Justice is given in section 3 which provides: "The Secretary of Justice in coordination with the Secretary of Health and Bureau of Corrections shall x x x promulgate the rules to implement its provisions." The delegated power of the Director of the Bureau of Corrections can be gleaned from section 1 of the law which provides "x x x The death sentence shall be executed under the authority of the Director of the Bureau of Corrections endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution. The Director of the Bureau of Corrections shall take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict," Under said Section 1, the power of the Director of the Bureau of Corrections to promulgate rules cannot be denied. The Director cannot carry out his duty to execute the death sentence "x x x endeavoring so far as possible to mitigate the sufferings of the person under the sentence during the lethal injection as well as during the proceedings prior to the execution" as well as his duty to "x x x take steps to ensure that the lethal injection to be administered is sufficient to cause the instantaneous death of the convict," without the power to promulgate the necessary rules. Indeed, it was pursuant to this power to make rules that the Director of the Bureau of Corrections prepared a Manual governing the "details of the procedure prior to, during and after administering the lethal injection x x x." The Manual which is a compendium of the rules of execution is recognized by no less than the respondent Secretary of Justice.

It is my humble submission that this unprecedented act of delegating the power to make rules to two persons over the same subject matter does not have any constitutional warrant. It can easily spawn legal absurdities and incongruities. The two authorities exercising the same power over the same subject matter may promulgate contrasting if not contradictory rules to the prejudice of the remaining rights of a death convict. In the case at bar, the anomalous situation is exacerbated by the possibility that the rules promulgated by the Director of Corrections, a lower ranked official, may contradict the rules of the Secretary of Justice, the top-ranked official in the Department of Justice. We should lay down the case law that the legislative choice of who shall be the delegate to make the rules and regulations to implement a law must be clear and unequivocal. Unless the choice of delegate is clear, the promulgation of the appropriate rules and regulations cannot be done. It is self evident that the legislative choice of who shall promulgate the rules to implement the law is as important as the standard which should guide the delegate in making the rules. Both must be beyond doubt.

II

Assuming Arguendo That R.A. No. 8177 Is Valid, Nonetheless,
The Rules And Regulations Implementing The Law Are Void.


We may assume arguendo that R.A. No. 8177 exclusively delegates to the respondent Secretary of Justice the power to promulgate its implementing rules and regulations. Nevertheless, I agree with the petitioner that the implementing rules and regulations are void.

First. It is elementary that the respondent Secretary of Justice cannot further delegate the power to make rules and regulations to another person. Delegata potestas non potest delegari, delegated power cannot further be delegated is a time honored legal principle. Under section 19 of the Rules and in blatant breach of this principle, the respondent Secretary of Justice delegated to the Director of the Bureau of Corrections the power to determine the "details of the procedure prior to, during and after administering the lethal injection." In addition, he abdicated to the said Director the power to determine "the sequence of events before and after the execution; procedures in setting up the intravenous lines; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system." The matters sub-delegated by the respondent Secretary of Justice to the Director of Bureau of Corrections involve the most significant aspects of the execution process. A wrong rule in any of these aspects of the execution process will deny a death convict the right to die with dignity. Citing Death Row Confidential by Weinstein and Bessent, petitioner relates some bizzare experience that have resulted from the inept executions of some death convicts by lethal injection, viz:
x x x

"27.1. On May 3, 1995, EMMITT FOSTER took thirty (30) minutes to die after the drugs entered his bloodstream. The delay in his death was attributed to an overly tight leather strap binding Foster's arm (which) slowed the process to a snail's pace. According to the reporters who covered the execution, Foster was 'gasping, slightly convulsing' when the blinds in the chamber were drawn.

"27.2. On January 24 1992, RICKEY RAY RECTOR'S death took on even ghastlier proportions. Rector was 298 pounds; it took the executioners more than fifty (50) minutes to find a usable vein in his arm. All this while, Rector, who was seriously brain damaged by reason of a lobotomy, was helping the personnel to locate a vein and all throughout, Rector could be heard moaning loudly as the staff tried to insert the line into a suitable vein.

"27.3. On March 13, 1985, STEPHEN PETER MORIN lay strapped on the gurney for forty five (45) minutes while the technicians repeatedly pricked his arms and legs with a needle in search of a vein suitable for the IV line.

"27.4. On August 20, 1986, RANDY WOOLS had to help his executioners find a good vein so that he could die. On June 24, 1987, Elliot Johnson waited on the gurney, awake and fully conscious for thirty five minutes, while the executioners searched for a place to insert the line.

"27.5. On December 13, 1988, RAYMOND LANDRY was killed at 12:45 in the morning after a fourteen-minute delay when one of the two needles sprang a leak, sending lethal liquid shooting across the room. The leak was caused by a "blowout" which results from the syringe coming out of the vein.

"27.6. On May 24, 1989, STEPHEN MCCOY had such a violent physical reaction to the drugs, consisting of heaving chest, gasping and choking.

"27.7. On May 10, 1994, after the execution of JOHN WAYNE GACY had begun, one of the three lethal drugs used clogged the tube; the tube had to be replaced with a new one."
The choice of the delegate who shall cobble the rules and regulations that will implement a law is part of lawmaking and hence, this power to choose is the sole prerogative of Congress. It follows that the delegate so designated by Congress has no authority to choose another who shall discharge the power given to him by Congress. It is a duty that the delegate cannot abdicate.

SECOND. It is bad enough that the respondent Secretary of Justice surrendered to the Director of Corrections the power to promulgate the rules on "x x x the sequence of events before and after the execution; procedures in setting up the intravenous line; the administration of the lethal drugs; the pronouncement of death; and the removal of the intravenous system." Worse still, under section 19 of the Rules, the respondent Secretary of Justice ordered that the rules governing these details should be contained in a Manual that "shall be confidential and its distribution shall be limited to authorized prison personnel." In other words, the operating Manual is a secret Manual whose content is unknown to the person to be executed and unbeknown to the public as well. The secret Manual can well contain arbitrary, capricious and whimsical rules and yet the rules cannot be challenged as they are known to the Director and authorized prison personnel but not to the person most affected --- the death convict. If basic due process demands that no person can be denied his lesser property rights thru unpublished laws, there is more reason to hold that one cannot be denied his greater right to life thru unpublished rules. The secret Manual denies a death convict the right to know how he will die.

THIRD. While the respondent Secretary of Justice was unenthusiastic in crafting the rules on the critical aspects of the execution process, he was over enthusiastic in enacting rules on matters unrelated to the subject matter of R.A. No. 8177. R.A. No. 8177 is stark clear on its subject matter. As its title indicates, it is merely "An Act Designating Death by Lethal Injection as the Method of Carrying Out Capital Punishment x x x." Yet, the Rules promulgated by the respondent Secretary overly arched on matters too remotely connected with the subject matter of R.A. No. 8177 such as prison services, manner of confinement, religious services, exercise, meal services, visitation and interviews, private correspondence and communication, court appearance, etc. These elaborate rules are not germane to the purpose of R.A. No. 8177. A re-reading of section 3 of R.A. No. 8177 will reveal that the authority of the respondent Secretary of Justice is limited to promulgating rules on how lethal injection should be administered to the death convict. Nothing less and nothing more.

But this is not all. Under section 17 of the Rules, the respondent Secretary of Justice ordained that "the execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of age." The rule suspending the execution of a pregnant woman and the commutation of the death sentence of a convict over seventy (70) years of age is in harmony with Article 83 of the Revised Penal Code. There is however, no law that provides that "execution by lethal injection shall not be inflicted upon a woman within the three years next following the date of sentence x x x." In ordaining this rule, the respondent Secretary engaged in out-and-out legislation which is taboo for an executive official. Our long undisturbed jurisprudence is that the "x x x rule making power of a public administrative body is delegated power, which it may not use either to abridge the authority given it by the Congress or the Constitution or to enlarge its power beyond the scope intended. A public administrative body may make only such rules and regulations as are within the limits of the powers granted to it."[2]

III

R.A. No. 8177 Implementing The Death Penalty

Violates International Norm


At the core of the issue of death penalty is the inherent and inalienable right to life of every human being. The recognition of this inherent right to life is one of the self-evident principles that inspired the adoption of five (5) major international covenants: the Universal Declaration of Human Rights in 1948, the International Covenant on Economic, Social and Cultural Rights in 1966, the International Covenant on Civil and Political Rights in 1966, and the two Operational Protocol to the latter Covenant. These legal instruments are collectively called the International Bill of Human Rights.[3]

The universal fight for the recognition of the right to life should never be lost in the mist of history. In December 1948, the United Nations General Assembly adopted without dissent the Universal Declaration of Human Rights.[4] The Universal Declaration is a pledge among nations to promote rights inherent in each and every individual. Theses rights were distinguished from mere privileges that may be awarded by governments for good behavior and withdrawn for bad behavior.[5] Thus, Article 3 of the Universal Declaration decrees that "everyone has the right to life, liberty and security of the person." The Philippines is a proud signatory to this document.

On December 16, 1966, the United Nations General Assembly went on to adopt the International Covenant on Civil and Political Rights (ICCPR).[6] It was opened for signature on December 19, 1966 and entered into force on March 23, 1976. With respect to the death penalty, this Covenant provides:[7]
"1.      Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

"2.      In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

"x x x.

"4.       Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

"5        Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

"6.      Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant."
On July 27, 1982, the United Nations Human Rights Committee issued General Comment No. 6 interpreting Article 6 of the ICCPR.[8] It stated:
"(while) it follows from Article 6 (2) to (6) that State parties not obliged to abolish the death penalty totally, they are obliged to limit its use and, in particular, to abolish it for other than the 'most serious crimes.' Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the 'most serious crimes'. The Article also refers generally to abolition in terms which strongly suggest (pars 2(2) and (6)) that abolition is desirable.

"x x x.

"The Committee is of the opinion that the expression "most serious crimes" must be read restrictively to mean that the death penalty should be quite exceptional measure. x x x."
As of December 31, 1996, parties to the ICCPR has totalled 137 including the Philippines.[9]

The Optional Protocol to the Civil and Political Rights was adopted by the United Nations General Assembly on December 16, 1966.[10] It entered into force on March 23, 1976. This Protocol provides for the mechanism for checking state compliance to the provisions of international human rights instruments such as a reportorial requirement among governments. The Philippine signed this Protocol on December 19, 1966 and ratified it on August 22, 1989. As of December 1996, this Optional Protocol has 89 state parties.[11]

The Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty was adopted and opened for signing by the General Assembly on December 15, 1989.[12] It entered into force on July 11, 1991.[13] The Philippines together with 58 other states voted in favor of the adoption of this document, while 26 voted against and 48 abstained.[14] However, the Philippines has not ratified this Protocol. Under this Protocol, States must take all necessary measures to abolish the death penalty. More specifically, it provides that:[15]
"1.       No one within the jurisdiction of a State Party to the present Optional Protocol shall be executed.

"2.      Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction."

As of December 1996, 25 States have ratified this Optional Protocol.[16]

From its inception, the United Nations has been steadfast in its view that like killings which take place outside the law, the death penalty denies the value of human life. In United Nations General Assembly Resolutions 2857 (XXVI) and 32/61 of 6 December 1977 and in Economic and Social Council Resolutions 1574(L), 1945 (LIV) and 1930 (LVIII) the abolition of the death penalty was marked as one of the high aims of the assembly of civilized nations.

In recent years, the United Nations has adopted numerous resolutions to make it more difficult for states to implement the death penalty. Thus, on May 24, 1989, the Economic and Social Council by Resolution 1989/64 recommended that Member States take steps to implement the Safeguards Guaranteeing Protection of the Rights of Those acing the Death Penalty.[17] The Safeguards have nine provisions specifying the basic guarantees in criminal justice proceedings, in the context of the rights of the offenders charged with a capital offense.[18] The Safeguards were approved by the ECOSOC on the understanding that they should not be invoked to delay or prevent the abolition of capital punishment.

On April 3, 1997, in its 53rd Session, the Commission on Human Rights adopted Resolution 1997/12 on the Question of the Death Penalty.[19] In this resolution the Commission took note of the report of the Secretary General on capital punishment and implementation of the safeguards guaranteeing protection of the rights of those facing the death penalty,[20] which states that there has been a considerable shift towards the abolition of the death penalty.[21] Thus, "convinced that abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights", the Commission resolved to take the following actions:
"1.       Calls upon all States to the International Covenant on Civil and Political Rights that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty;

"2.       Urges all States that still maintain the death penalty to comply fully with their obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, notably not to impose the death penalty for any but the most serious crimes, not to impose it for crimes committed by persons below eighteen years of age, to exclude pregnant women from capital punishment and to ensure the right to seek pardon or commutation of sentence;

"3.       Calls upon all States that still maintain the death penalty to observe the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, set out in the annex to Economic and Social Council Resolution 1984/50 of 25 May 1984;

"4.       Call upon all States that have not yet abolished the death penalty to progressively restrict the number of offenses for which the death penalty may be imposed;

"5.       Also calls upon all States that have not yet abolished the death penalty to consider suspending executions, with a view to completely abolishing the death penalty."[22]
Regional organizations have also taken forwards steps towards the abolition of death penalty. On April 23, 1983, the Sixth Protocol to the European Convention on Human Rights was opened for signature by member States of the Council of Europe. It categorically condemned the abuses of the death penalty during the Second World War. The Sixth Protocol is the first binding international agreement for the abolition of the death penalty. By ratifying the Protocol, a state accepts an obligation under international law to abolish the death penalty for peacetime offenses. Twelve of the 22 western European countries belonging to the Council of Europe had ratified the Sixth Protocol by January 1989. Three other member States have signed the protocol and indicated their intention to ratify it at a later date.

All these legal developments show the indisputable emergence of an international norm abolishing the death penalty. William Schabas observed that the adoption of the International Bill of Human Rights has firmed up this international norm.[23] I respectfully submit that we should respect this international norm consistent with the spirit of section 2, Article II of our Constitution which mandates that the Philippines "x x x adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations."

IV

At The Very Least, Execution Of Our Death Convicts Should

Be Suspended Pending Decision Of Our Government To

Either Reject Or Ratify The Second Optional Protocol


It cannot be gainsaid that the movement towards the abolition of death penalty is unstoppable. Amnesty International reports that as of October 1996, a total of 58 countries have abolished the death penalty for all crimes; 15 countries have abolished the death penalty for ordinary crimes, and 26 are abolitionist de facto, or countries and territories which retain the death penalty for ordinary crimes but can be considered abolitionist in practice in that they have not executed anyone during the past ten (10) years or more, or in that they have made an international commitment not to carry out executions.

As aforestated, the Philippines voted in favor of the Second Optional Protocol to the ICCPR Aiming the Abolition of the Death penalty. It appears, however, that the Philippines as of this date has not ratified this Protocol. But, pending our government decision either to reject or ratify this Protocol, the more prudent stance of the authorities should be to suspend the execution of any death convict. We have a new Congress and a new President and they need will time to study the implications of this Second Protocol viz our commitment to be bound by international laws and to be guided by international norms.

V

Beyond The Legal Arguments, The Bottom Line Is That

Death Penalty Does not Deter The Commission Of Crimes


Between January 1994 and September 1997, more than 410 people have been sentenced to death by our trial courts, mostly of rape, murder or drug offense.[24] As of September 17, 1998, this Court had confirmed seventeen (17) death sentences, acquitted seven (7) accused, commuted fourteen (14) sentences to prison terms and sent five (5) other cases back to the trial court for re-trial.[25]

These irrefutable statistics show the non-deterrent affect of death penalty on criminals in our country. Abroad, international studies after studies of high scholastic value have also failed to evince evidence that the death penalty has any unique capacity to deter others from committing particular crimes.[26] In 1988, a major report was submitted to the United Nations by Roger Hood, Director of the Center for Criminological Research at Oxford University in the United Kingdom. This study was prepared and published pursuant to Economic and Social Council Resolutions 1986/10, section X and 1989/64. In the latter Resolution the Secretary General was also requested to make this study available together with other relevant studies to the Eighth United Nations Congress on Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 27 August/7 September 1990). The study concluded that "xxx (the) research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment." Such proof is unlikely to be forthcoming for this study simply confirmed the results of two earlier reports submitted to the UN by Marc Ancel, Director of the Criminal Science Section of the Institute of Comparative Law of Paris, entitled Capital Punishment (1962) covering the period 1956-1960 and Norval Morris, Professor of Law and Criminology and Director of the Center for Studies in Criminal Justice, University of Chicago, entitled Capital Punishment: Developments 1961-1965 (1967), which shattered the deterrence theory. Other studies show that convicted persons did not remember thinking they might be sentenced to death before committing the crime despite their knowledge of the death penalty. They found that it is incorrect to assume that people who commit such serious crimes such as murder do so after rationally calculating the consequences. Empirical evidence further shows that murders are often committed in moments of passion, when extreme emotion overcomes reason or under the influence of alcohol or drugs or in moments of panic. It was further established that people who plan serious crimes in a calculated manner to decide to proceed despite the risk in the belief that they will not be caught. In other cases, people who commit violent crimes are highly unstable or mentally ill. In none of these cases did fear of the death penalty deter the commission of crimes.

Apropos is the intelligent counsel of a leading member of the United Kingdom parliament during a debate on the death penalty in 1983: "If the deterrent case is to be accepted, if we are to vote for capital punishment as a deterrent, we at least ought to be sure that it deters. If we are to hang men and women by the necks until they are dead, we ought to do it on more than a hunch, a superstition, a vague impression"[27] If in truth, the death penalty deterred potential offenders more effectively than other punishments, one would expect that in countries with similar legal systems, those which have the death penalty for a particular crime would have a lower crime rate than those which do not. Similarly, a rise in the rate of crimes punishable by death would be expected in states which abolished the penalty and a decline in crime rates would be expected among states which introduced the punishment for those crimes. However, statistics from abolitionist countries do not show that abolition of the death penalty caused a rise in the crime rate.

Weaker than the argument of deterrence is the argument of retribution to justify the death penalty. This argument purveys the Old Testament idea of an eye for an eye and a tooth for a tooth justice; that certain people deserve to be killed as repayment for the evil done; and that there are crimes so offensive that killing the offender is the only just response. The argument propelled by unthinking emotion. While the desire for vengeance can be understood, its exercise deserves an impassioned consideration for retribution makes impossible demands on our justice system. Biases inherent in all legal systems and unavoidable errors of human judgment preclude a system which can mete out death in a fair and fail proof way.[28] In the United States, Thorsten Sellin "examined statistics on prosecutions, convictions and executions for murder and concluded that 'retributive capital justice is tainted by bias and influence of factors beyond the control of courts of justice, such as the poverty of the defendant, which prevents him from engaging competent counsels skilled in the art of criminal defense.'"[29] Even those who ardently advocate retribution by death often paradoxically plead that it should be used sparingly, for fear that it would dull the moral sensitivity of the community and lose its terrifying effect.[30] As perceptively observed: "Such analyses suggest a sacrificial element in the use of the death penalty. Since it is impossible to follow through fully the logic of retribution argument, a token number of prisoners are executed to satisfy popular demand."[31] We humbly add that this Court should not participate in a lottery where life will be at stake. Even a decision to execute everyone convicted of a particular crime, such as the mandatory imposition of death penalty for certain offenses, would fail to meet the fundamental requirement of fairness. In truth, by ruling out mitigating circumstances and refusing to consider the limitations of any attempt to define crimes, mandatory death sentences render judicial fairness even more difficult to achieve. The inevitable result will be an arbitrary threshold for deciding who lives and who dies. In Singapore and Malaysia, to cite examples, the death penalty is mandatory for possession of more than 15 grams of heroin, hence, only a tiny difference between life and death.[32] It ought to be seen that the argument for retribution is often no more than a desire for vengeance masked as a principle of justice.

Our experience in the Philippines should speak for itself. In 1989, Amnesty International Undertook a special study to examine how the death penalty was used in our country prior to its abolition in 1987.[33] The study uncovered several cases of innocent people sentenced to death who were later acquitted by this Court and at least one case of a prisoner who may not have been guilty of a capital offense but was executed. In many of these cases, it was proven that the death convicts had been pressured into giving involuntary confessions. In one case, an innocent man served 17 years in prison before his conviction was overturned. Several cases validated earlier studies that the death penalty did not serve as a deterrent to the commission of crime. The reason was because the suspected criminals were either ignorant of the law or because they thought they could beat the law. Some purposely committed the crimes for political reasons and thus, were willing to risk their lives.

In fine, the reimposition of death penalty in the Philippines highlights the risks of unfairness and error which exists in all criminal justice system. It is for this reason that even while the death penalty was in force, it was not implemented wholeheartedly. No executions have taken place since 1976. And from 1972 to 25 March 1985, out of the 794 people given the death penalty by the trial courts on 28% of the sentences have been affirmed and some 75 of these convictions have been reversed by this Court.[34]

The dark reality of the death penalty is that who is executed and who is spared is often determined not only by the nature of the crime but also by their social background, their financial means or the political opinions of the defendants. This is confirmed by the undefiled study made by Dr. Ricardo Zarco of the University of the Philippines, which showed that almost all the convicts put to death since 1947 came from the lower socio-economic class. Only three came from well-to-do families like the persons who committed rape against Maggie dela Riva.[35]

V


CONCLUSION:

Right To Life Not Subject To Popular Vote

It is to be sadly noted that when there is a public-clamor to stop the rising tide of criminality, the death penalty is always suggested as a quick fix solution. The issue of whether the State has the right to kill should not, however, be resolved on the basis of popularity poll. Right and righteousness are not based on what is the fashion of the day. We cannot give a blind eye to the enlightened argument that the way to deter crime is not to increase the severity of punishment but to increase the likelihood of detection, arrest and conviction. We cannot be indifferent to the internationally accepted view that rehabilitation and reformation of criminals ought to be our main penal goal. Let us hearken to the wisdom of Article 10 of the International Covenant on Civil and Political Rights which provides that the "penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation."

It is not too much to ask that we rejoin the mainstream of civilized nations.

I vote to grant the petition.


[1] People v. Echegaray, G.R. No. 117472, February 7, 1997, 267 SCRA 682.

[2] People v. Lim, 108 Phil 1091 [1960]. Hijo Plantation Inc. v. Central Bank of the Philippines, 164 SCRA 192 [1988].

[3] The Charter of the United Nations, agreed to in 1945, set up a Human Rights Commission. The members of the Commission as a compromise decided that the Bill should have three parts: a declaration proclaiming general principles, a "covenant or covenants" embodying these principles in a form which would be binding on States which ratified them, and "measures of implementation" or provisions for review of the way in which States carried out their covenant obligations.

[4] When the State Kills - The Death Penalty versus Human Rights, Amnesty International Publication, April 1989 AI Index: ACT 51/11/89 London United Kingdom, p.1.

[5] Id.

[6] United Nations Treaty Series, vol. 999, p. 171.

[7] Article 6.

[8] General Comment on Article 6 of the International Covenant on Civil and Political Rights, adopted at its 378th meeting (16th session) on July 27, 1982 by the Human Rights Committee set up under the ICCPR.

[9] Five signatures were not followed by ratification, See Human Rights Instruments Chart of Ratification, ST/HR/4/Rev. 15, United Nations Publication (Sales No. E.87XIV.2) 1997.

[10] Supra note 6.

[11] Two signatures were not followed by ratification, See Human Rights Instruments Charts of Ratification, ST/HR/4/Rev. 15, United Nations Publication (Sales No. E.87.XIV.2) 1997.

[12] General Assembly Resolution 44/128, UN Yearbook, 1989 p. 485.

[13] Doc. A./RES/44/128.

[14] Supra note 12.

[15] Article 1

[16] See Human Rights Instruments Chart of Ratification, ST/HR/4/Rev. 15 United Nations Publication (Sales No. E.87.XIV.2) 1997.

[17] The Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty were adopted by the Economic and Social Council in 1984, on the recommendation of the United Nations Committee on Crime Prevention and Control. They were endorsed in 1985 by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Milan, Italy from 26 August to September 1985.

[18] Among the guarantees provided are: the right to benefit from lighter penalties under certain conditions; to appeal and seek pardon; with exemptions from capital punishment (for persons below 18 years of age, pregnant women, new mothers and persons who become insane); with the necessary evidentiary requirements and with suspension of capital executions; capital punishment can be imposed only for the most serious crimes, i.e. intentional crimes with lethal or extremely grave consequences.

[19] Adopted by a roll call vote of 27 votes to 11 with 14 abstentions. Commission on Human Rights, Report on the 53rd Session, 10 March-18 April 1997, ECOSOC Official Records, 1997, Supplement No. 3, UN.E/CN.4/1997/L.11/Add.1 p. 19.

[20] Report of the Secretary General, United Nations Standards and Norms in the Field of Crime Prevention and Criminal Justice, Commission on Crime Prevention and Criminal Justice, Fifth Session, Vienna 21-31 May 1996. E/CN.15/1996/19.

[21] Id.

[22] Adopted by a roll-call vote of 27 votes to 11 at the 37th Meeting of the United Nations Commission on Human Rights, April 3, 1997. The Philippines in a Joint Statement with other 27 States disassociated itself from Resolution 1997/12.

[23] William A. Schabas, The Abolition of the Death Penalty in International Law, second ed., 1997.

[24] AI Index: ACT 50/01/98.

[25] Supreme Court Data on Death Penalty.

[26] See When the State Kills-The Death Penalty v. Human Rights, supra note 4 at 11-12. This finding was also reflected in United Nations, The Question of the Death Penalty and the New Contributions of the Criminal Sciences to the Matter, A Report to United Nations Committee on Crime Prevention and Control, United Nations Social Affairs Division, Crime Prevention and Criminal Justice Branch, Vienna, 1988, p. 110, cited in When the State Kills.

[27] Roy Hattersley, speaking in a debate on the death penalty in the United Kingdom House of Commons (Lower House of Parliament) on 13 July 1983 cited in When the State Kills at 9.

[28] Supra, note 4 at 6-7.

[29] Thorsten Sellin, The Penalty of Death, Sage Library of Social Research, Vol. 102, London, 1980 at 110-118, cited in when the State Kills at 17.

[30] Sellin at 55, 71-73.

[31] Supra note 4 at 17.

[32] Id.

[33] Philippines: Case Studies in the Use of the Death Penalty (AI Index: ASA 35/08/89) April 1989.

[34] Record of the Constitutional Commission.

[35] Daniel Martinez, "Crimes and Capital Punishment," Criminal Justice Journal, I, No. 2 (1980) at 38-39.

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