First, a legal reason. In 2007, after a long period of hesitation, we acceded to the Second Optional Protocol to the Covenant on Civil Political Rights. This agreement binds state-parties to abolish the death penalty. The Philippines therefore has a treaty-obligation to abolish this form of barbarism. We can, of course, denounce the treaty but that certainly would mark us out as retrogressive in the very important matter of human rights. The most egregious crimes are those over which the International Criminal Court has jurisdiction—genocide, crimes against humanity, violations of the laws and customs of war. Significantly, however, for none of these is the death penalty imposed. Even before the Treaty of Rome, the statutes of the ad hoc criminal tribunals—the International Criminal Tribunal for Former Yugoslavia and the International Criminal Tribunal for Rwanda—defined and punished among the most atrocious acts recorded in history, but for none of them could the death penalty be imposed. Definitely, the persuasion among penal theorists and in progressive legal systems is towards abandoning the death penalty.
The agitation, emanating of course from the presumptive president, to re-start the killing machine is the wrathful, perhaps panicky, reaction to different forms of criminality that stubbornly evade law-enforcement and, like some protuberant malignancy, know no remission! But this is precisely the reason for distancing ourselves from this dangerous inclination. An essential dimension of criminal justice is establishing a distance between the atrocity of the criminal act and the infliction of penalty—because retaliation is the antithesis of justice! At all times it is the vindication of humanity that is the issue: the humanity of the victim, as well as that of the offender. The dehumanization of the offender does not improve the lot of the victim. It is silly, ludicrous even to think that by worsening the lot of the offender, murdering him even, we better the position of the victim, unless of course, we grant that it is ultimately revenge that we are after. In this case, it would be more candid on our part to set aside all talk of justice. The point is to disrupt the cycle of violence—not to perpetuate it by stylizing it through state-sponsored execution!
The Constitution forbids “cruel and unusual punishment” and past jurisprudence that exempted the execution of the death penalty from the characterization of “cruel” punishment was thoroughly silly and hypocritical. What is cruel does not become any more benign just because it is ordained by the law. And there can be nothing more cruel than making a doomed man await his execution, dreading the passing of each minute—an experience we all vicariously shared as Mary Jane Veloso awaited the dreaded moment when a volley of shots was to bring an end to life, visiting the agony of impending death not only on her but on the members of her family. There is everything cruel about stigmatizing and branding her children for life as children of an executed man—even if they may have had no part in the commission of the offense.
As for the well-worn argument from its supposedly deterrent effect, two things only need be said. No matter that something may be a deterrent, if it is objectionable and abhorrent, whatever its value may be as a deterrent will not negate the objections to it. Towing boatloads of migrants back to the high seas there to face the cruelty of the elements if not certain death is undoubtedly a deterrent to attempts at illegal migrations, but it is certainly immoral, reprehensible and even criminal to do so! More importantly, the aggressive campaign against smoking should easily show the fallacy of the argument from deterrence. Every possible device has been employed to deter smokers from indulging in their vice: dire warnings about the health risks, posters with the most revulsive pictures of diseased lungs, very convincing statistics on the incidence of deaths among smokers. Smokers are threatened with death most painful. None of this has really deterred smokers who continue happily puffing away, and breathing on innocent others their lethal fumes. No, the argument from deterrence has never really convinced me. The certainty of being dealt with by the criminal justice system—arrest, prosecution, trial and conviction—is what gives the criminal pause, not the severity of the penalty. It is because the moneyed are convinced that they can bribe their way through the police, prosecutorial and justice systems that impunity is unabated. But when law-enforcement is thorough, prosecution is relentless and judgments go solely by the evidence adduced, the efficiency and reliability of the system will be a disincentive to crime, in just the same way that the thoroughness of a professor and the mercilessness of graded recitation provide the most effective disincentive to intellectual sloth!
Finally, there is the imperfection of our judicial system. I do not refer principally to the susceptibility of some of our prosecutors and judges to corruption. I am confident that most of them honestly do their jobs. But there is no fool-proof technique for distinguishing between truth and prevarication, no infallible test of a truthful witness. And many a judge will admit that most of the time (if not all the time), a guilty verdict is more a statement about how the judge appreciates the evidence than any claim about what may or may not have happened! Once more, this is not because of any ill will on the part of judges. It has to do more with the crucial epistemological issue of drawing conclusions about the past from what you have in the present!
We are worn out from rampant criminality. We are a nation beleaguered by remorseless drug peddlers, war lords, plundered and extortionists. But it will not serve our goal of national renewal to seek umbrage from the false and deceptive security of the law of the talion or to think that our national salvation comes from the macabre shadows of a death chamber!
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
rannie_aquino@yahoo.com