CHAPTER 2

THE RESEARCH LITERATURE

This chapter includes the ideas, finished thesis, generalization or

conclusion, methodologies and others. Those that were included in this chapter

helps in familiarizing information that are relevant and similar to the present

study.

Review of the Literature

Local

In a resolution by the Commission on Human Rights it made the following

studies. As an independent body created by the Philippine Constitution to

protect and promote human rights in the Philippines, the Commission on Human

Rights has made the following policy study on the justification and the efficacy of

capital punishment. This is pursuant to the vital state policy as stated in Article II

Section 11 of the Philippine Constitution that “The State values the dignity of

every human person and guarantees full respect for human rights.”

Studies of FLAG revealed that the death penalty has not deferred the

commission of heinous crimes. In a position paper submitted to the CHR, the

FLAG said: “x x x the commission of rape increased by 40% in 1994 and 44% in

1995. Violent raids of banks and other business establishments rose sharply in

the first quarter of 1995. Kidnapping and serious illegal detention continue to

occur, with many cases unreported, as victims have lost faith in the authorities. In
1994, the country’s nationwide crime volume declined by only 1% from the

previous year but the total crime volume in Metro Manila reached 27,008 or an

average month crime rate of 24.93% about 6.79% higher than the 1993 monthly

rate of 18.14%.”

Study conducted by the Amnesty International revealed that when death

was the penalty for various crimes during Martial Law, violent crimes increased

with alarming regularity. Survey show that the threat of death did not in any way

deter crimes as shown in the crime volume and crime rates between 1979 and

1985.

What really defers the commission of the crime is the ability of criminal

law enforcement to make citizens law abiding by effecting arrest and intensifying

its crime prevention activities: (1) Increase police visibility by augmenting foot

and mobile patrols and construction of detachment in crime prone areas. (2)

Improvement of crime solution efficiency by improving skulls of investigators and

providing the police with better equipage.

Since social conditions and personal maladjustments are assumed to be

the “seed bed” of crimes, the threat of death could not deter criminality or if

there is any, the deterrent effect will be negligible. Instead, the government

should address the problem of poverty and inequality by proving the quality of

family ide and through amelloration of economic and social conditions in the

community.
 Based on this premise, the Commission is not fully convinced that the

death penalty is the answer to rising criminality. The proper response to

criminality lies in effective law enforcement, the quick and impartial delivery of

justice, and a responsive penal system. 1

(Bueno, A.) In a country that has seen the re-imposition, abolition, and

possible re-imposition (again) of the penalty of death, what can we expect once

the death penalty bill passes into law, 11 years after its most recent version was

“killed”? Here are a few examples of what a future with the death penalty looks

like in the Philippines.

When the Philippines ratified, and therefore bound itself to the ICCPR in

1986, it was obliged to respect any human being’s inherent right to life, as stated

in Article 6 of the treaty. When we additionally ratified the ICCPR’s Second

Optional Protocol in 2007 — a complementary instrument drafted with

the specific goal of abolishing the death penalty in the territory of any State who

is a party to it — we expressly and even more strongly bound ourselves to this

obligation.

Article 1 of the protocol states that “No one within the jurisdiction of a

State Party to the present Protocol shall be executed,” and that “Each State Party

1
RESOLUTION ON THE RE-EXAMINATION OF THE DEATH PENALTY (R.A. NO. 7659).
Available at http://chr.gov.ph/wp-content/uploads/2018/01/Resolution-On-the-Re-Examination-of-
the-Death-Penalty-Law-R.A.-No.-7659.pdf
shall take all necessary measures to abolish the death penalty within its

jurisdiction.”

Even a year before the Philippines ratified the protocol, former president

Macapagal-Arroyo’s administration already saw the complete abolition of the

death penalty in 2006, anticipating our permanent commitment to our

international obligation (thus explaining her “no” vote in the final House reading

in 2017).

Notably, the Philippines is not allowed to denounce or withdraw from its

obligations in the ICCPR (of which the protocol forms a part), considering the

fundamental nature of the rights it protects.

Aside from violating the ICCPR and its Second Optional Protocol, the

reimposition of the death penalty may also have adverse economic effects to the

country. Some international instruments look into the ratification of major

human rights conventions (the ICCPR and its protocols are landmark human

rights agreements) as a requisite before granting trade benefits to developing

States, such as the Philippines.

Leading up to the abolition of the death penalty in 2006, former Chief

Justice Artemio Panganiban was quoted as saying that the Supreme Court could

have committed a “judicial error” in convicting Echegaray.

Prior to 2006, the highest court has already admitted in People v.

Mateo the fatal fallibility of some of its judges, stating that 77.71 percent of the
decisions tried by lower courts, imposing the death penalty, are either modified

or reversed upon review by the highest court. In the case, the Supreme Court

even stated the following numbers: Of the 907 cases it reviewed from 1993 to

2004, only 230 (25.36 percent) have been affirmed (or found to have been

properly decided by the lower courts). From death, the Supreme Court in fact

reduced the penalty to reclusion perpetua in 483 cases (53.25 percent). It also

rendered an acquittal in 65 cases.

In sum, the court surmised: during that period, 651 out of 907 individuals

were saved from lethal injection, and would have been wrongly punished with

the death penalty if not for the review conducted by the Supreme Court. 2

According to Amnesty International the death penalty also carries a

manifest risk of miscarriages of justice. No criminal justice system in the world is

immune from errors and that of the Philippines is no exception. A single error

that culminates, irrevocably, in the execution of an innocent person would

represent a shocking failure of justice - in effect, a judicial murder. The risk of

judicial error is sharply increased if torture or ill-treatment of criminal suspects is

used to extract confessions. Such grave violations of human rights are prohibited

by the Philippine Constitution and by the key international human rights treaties

to which the Philippines is a party. In April 1997 an Amnesty International

2
Bueno A. (2017) THE PRICE OF CAPITAL PUNISHMENT: WHAT A FUTURE WITH
DEATH PENALTY MAY LOOK LIKE. Available at
http://cnnphilippines.com/life/culture/politics/2017/03/08/death-penalty.html
delegation visited the Philippines and gathered testimonies of some of those

prisoners awaiting execution. The interviews conducted revealed allegations of

illegal methods used by law enforcement officers to extract confessions -

including ill-treatment and torture. The allegations of the death row prisoners

were consistent with patterns and types of torture and ill-treatment by police

reported by other criminal suspects and prisoners. Amnesty International is

concerned that illegal methods often used in the past to secure convictions of

political suspects continue to be used against criminal suspects today. As well as

torture and ill-treatment warrantless arrests, the planting of evidence, and the

intimidation of witnesses and alleged accomplices appear to remain part of

police investigative practice - and has sharply increased the risk that the innocent

may indeed be executed.

On the eve of the possible renewal of executions in the Philippines after

20 years it is clear that the concerns surrounding the application of the death

penalty in the past remains pressing today. These concerns include: • The risks of

judicial error - especially in the light of continued reports of illegal methods

including the planting of evidence, and the use of ill-treatment and torture to

secure confessions from criminal suspects. • Evidence that the death penalty

continues to be applied in an arbitrary, inconsistent way which falls

disproportionately on poorer, disadvantaged sectors of society. • The safeguards

necessary to ensure fair trial, which are especially important when the
punishment is irrevocable - and which include the right of the accused to have

access to competent legal counsel at every stage of proceedings - are not being

rigorously and consistently upheld.

In a 1989 report Amnesty International highlighted seven cases from the

pre-abolition period where mistakes by lower courts - eventually exposed by

Supreme Court reviews - led to the death penalty being imposed. The cases

underscored the inevitable risks of human error in the judicial process and how,

in practice, the death penalty was imposed in an arbitrary, selective way. The

cases also drew attention to the human suffering of the falsely convicted - most

of whom had to endure imprisonment under sentence of death for over ten

years before being acquitted by the Supreme Court.

Moreover, fears remain that innocent people may have been executed. In

one case, involving a farmer named Eusebio Molijan, sentenced to death for

multiple murder during an attempted robbery in 1950 and executed by

electrocution in 1958, there remains concern that he may have been falsely

convicted. Eusebio Molijan was convicted on the strength of a written confession

which he retracted during his trial, saying he had been punched in the stomach

and beaten with a piece of wood by police to force him to confess. He also

claimed he had been forced against his will to participate in the robbery and that

another man had planned and carried out the murders. The Supreme Court
acknowledged that there was insufficient evidence to prove that Molijan was the

instigator of the crime, but his death sentence was confirmed.

The risks of executing the innocent were highlighted by the case of two

men convicted of piracy by military tribunals who were due to be executed in

1976. Late on the night before the execution one of the prisoners, an elderly man

named Felipe Santos, told the prison chaplain that he was innocent. The chaplain

went to the adjoining cell and asked Santos’ co-accused about Santos’

involvement. The co-accused admitted that he had involved Santos only so as to

have a ‘companion in my misery’. After hurried attempts to contact the

authorities, the execution, due to take place at 3.00 pm, was called off by

President Marcos at 2.55 pm.

The death penalty is no solution to the severe challenge posed by

criminality in the Philippines. It is the certainty of arrest, conviction and long

periods of imprisonment, not the threat of execution alone, which will act as

deterrent against crime. The frustration and fear felt by many Filipinos because

of high rates of crime deserves a genuine answer-not a short-term palliative

offered through the death penalty as a means of retribution.

A sustained program of reform of the Philippine National Police, criminal

investigation agencies and elements of the judiciary is necessary. At present law

enforcers are too often perceived as corrupted or responsible for human rights
violations while justice is not seen to be distributed fairly-the wealthy and

influential are, in practice, not equal before the law.

The death penalty is being applied at an accelerating rate in the

Philippines. As in the past it appears to be imposed inconsistently and in a

disproportionate way against the poor, ill-educated and disadvantaged. The risk

of judicial errors is mounting and Amnesty International is gravely concerned

over the use of illegal methods, including torture, by criminal investigative

officers seeking to extract confessions. Moreover, there is apprehension over

inadequate safeguards, especially in the lower courts, to ensure the defendants

have access to competent counsel, and that the rigorous standards of fair trial

essential in capital cases are upheld.

Strapping a prisoner to a bed and injecting him or her with a cocktail of

lethal drugs is brutalizing and degrading. It violates the principles of the Universal

Declaration of Human Rights (UDHR), and undermines the aspiration for a

renewed respect for human rights that lay at the heart of the popular movement

that restored constitutional democracy in the Philippines in the 1980s.3

Foreign Literature

3
PHILIPPINES: THE DEATH PENALTY Criminality, Justice and Human Rights. Available at
http://www.amnesty.org.ph/wpcontent/uploads/2016/12/Philippines_DP_Criminality_asa3500919
97en1.pdf
 A. Against the imposition of death penalty

In a book authored by the United Nations entitled Moving Away from the

Death Penalty it provides that International attitudes to the death penalty have

evolved with the knowledge that every criminal justice system, however

sophisticated, is susceptible to error and miscarriage of justice. International

human rights law, recognising that susceptibility, mandates that fair trial

guarantees must be implemented in all death penalty cases. The understanding

is that those facing the death penalty should be afforded special protection and

guarantees to ensure a fair trial above and beyond those afforded in non-capital

cases. The reality is that the prevailing law and practice in far too many

retentionist countries across the Caribbean, Africa and Asia do not provide the

level of protection required in capital cases. Unless and until states can meet

universally accepted standards, the death penalty should not be enforced. Too

many countries retain the death penalty without assuming responsibility for the

proper administration of criminal justice; many states fail to provide special

procedural protections in capital cases. 4

(Lehrfreund S. 2015) There are many instances of miscarriage of justice

and unfair trials in capital cases in Caribbean countries. Wrongful convictions and

unfair trials are all too common, and the ratio of successful appeals to the Courts

4
MOVING AWAY FROM THE DEATH PENALTY. Available at
https://www.ohchr.org/EN/newyork/Documents/Moving-Away-from-the-Death-Penalty-2015-
web.pdf
of Appeal and the Judicial Committee of the Privy Council reveals that the proper

administration of justice is called into question in far too many capital cases.

There are serious concerns that the common law as applied in the 19th century

is not an adequate instrument for control of poorly paid, lightly disciplined police

forces who are under pressure to secure results in the face of rising crime rates

and criminal violence. The law as it stands does not provide an adequate basis

for the exclusion of unreliable confessions, identifications and other aspects of a

defective investigation. People who face the death penalty are typically tried and

convicted upon confession evidence that is later challenged, given at a time

when legal aid is not available. The right of access to a lawyer while in custody

remains, on the whole, theoretical rather than practical, and trial and appeal

lawyers are too frequently illequipped and/or insufficiently experienced to

ensure a fair trial and often lack sufficient resources to obtain the expert

assistance (medical or otherwise) needed to adequately prepare the defence.

Malawi’s criminal justice system, like that of many Commonwealth

Caribbean countries, is based on English common law. An obvious difference is

that capital murder trials are held in the High Court before a single judge who

determines guilt and imposes a sentence, not before a jury. Although Malawi’s

Criminal Procedure Code provides for the right of trial by jury, jury trials in

homicide cases were discontinued in 2009 by executive fiat, a decision justified at

least in part by their cost Article 42 of the Malawi Constitution provides that
indigent defendants facing criminal charges are entitled to free legal aid “where

the interests of justice so require.” In practice, however, legal aid is provided only

in homicide cases as there are so few lawyers to serve the entire country. Malawi

has struggled for years with a tremendous backlog of homicide cases causing

severe prison overcrowding throughout the country. Bail is rarely granted in such

cases, and homicide trials are frequently suspended, meaning many accused

persons spend several years awaiting trial. These “remand” prisoners typically

will not speak to a lawyer until the day of trial, when a Legal-Aid advocate will

interview them briefly. The defence rarely calls witnesses or conduct any

investigation; in most cases counsel simply cross-examines the prosecution’s

witnesses based on a thin file containing witness statements and a post-mortem

examination. Under Section 11 of the Supreme Court of Appeals Act, each

individual convicted of homicide has the right to appeal to the Malawi Supreme

Court. In practice, however, the right to appeal is often frustrated by the lack of

an effective case-management system and the failure of Legal-Aid attorneys to

track cases on appeal. Case files often go missing. The law, as applied in countries

such as Malawi, does not protect against mistakes leading to the wrong person

being convicted and sentenced to death.

An authoritative recent United Nations report stated: “In many countries

in Asia, specifically in death penalty cases, the right to a fair trial was impeded by

laws which denied due process. Even in countries where due process safeguards
exist in principle, they were not applied in practice.” The Anti-Death Penalty Asia

Network has reported that courts continue to rely on “confessions” extracted

through torture as evidence in criminal trials—despite the international ban on

torture and on the use of such confessions. Laws impose mandatory death

sentences for crimes such as drug trafficking, and place the burden of proof on

the accused, depriving them of the right to be presumed innocent until and

unless proven guilty according to law. Access to a lawyer before, during and after

trial is often denied, and in some countries the independence of the judiciary is

not assured. Some states have established special courts which sentence people

to death after hasty proceedings.

There have been 11 executions in Taiwan since 2013, in spite of growing

public disquiet about the death penalty with the knowledge that there is a real

danger the state could execute someone in error following an unfair trial. In

January 2011, Taiwan’s Ministry of Justice admitted that Chiang Kuo-ching had

been executed in error in 1997, for the rape and murder of a five-year-old girl

committed 15 years previously. After a campaign by Chiang’s parents, the

Military Supreme Court Prosecutor’s Office filed an extraordinary appeal with the

Military Supreme Court to reopen the case in 2010. The authorities

acknowledged that Chiang’s confession was the result of torture by military

investigators, including being subjected to a 37-hour interrogation, exposed to

strong lights, threatened with an electric prod and deprived of sleep while being
forced to undergo strenuous physical activities.25 The authorities accepted that

the trial court had ignored Chiang’s allegations of torture and his pleas of

innocence and that his conviction had been rushed through by the military court

In September 2011, a military court formally acquitted Chiang, and in October

2011, Taiwan’s Ministry of Defence agreed to pay US$3.4 million in compensation

to Chiang’s relatives. President Ma YingJeou publicly apologised to Chiang’s

mother and conceded that the authorities had “acted wrongly” in the case.

In Japan, there are no legal provisions requiring the effective assistance of

defence counsel. Indeed, Japanese courts tend not to find problems even when

defence counsel’s assistance is clearly ineffective and inappropriate. In some

cases, death sentences have been imposed and finalised despite insufficient

assistance from a defence lawyer, but there have been no cases in which a death

sentence has been overturned because of the ineffective assistance of counsel. A

minimum fair trial guarantee that needs to be respected in all capital cases is the

right of appeal. In the Caribbean, the availability of an automatic appeal has

saved many innocent lives, as the appellate courts have on numerous occasions

overturned capital convictions. However, in a number of Asian countries there is

no mandatory right of appeal, thus increasing the risk that wrongful convictions

will not be remedied.

China now provides for more than one appeal, but there are concerns

that the review process before the Supreme People’s Court does not meet the
minimum requirements of Article 14 of the ICCPR because the present

procedures are insufficient to meet developing human rights standards. All

appeals must be governed by the principles and safeguards of Article 14, and in

order to ensure an effective right of appeal, the convicted person should be

granted effective access to the review process with adequate legal

representation in an open, public hearing. In Japan, appeal to a higher court

against a death sentence is not automatic despite repeated recommendations by

the UN Committee against Torture and the UN Human Rights Committee.

In South Korea and parts of Pakistan, there is no mandatory requirement

for appeal to a higher court in death penalty cases, and in North Korea there is

no possibility of appeal at all.

Many lessons can be learned from the United Kingdom, where the death

penalty was in effect abolished in 1965. Between 1966 and 1993, there were 13

attempts in Parliament to reintroduce the death penalty for certain categories of

murder. These attempts ended after a shocking series of miscarriages of justice in

cases concerning particularly heinous crimes. The most notable were those of

the Birmingham Six and the Guildford Four, all wrongfully convicted of murder

through terrorist bombings, and Stefan Kisko, a man of limited intelligence,

wrongfully convicted of a child sex murder. “All would certainly have attracted

the death penalty had it been available. This persuaded many who had

previously supported the reintroduction of capital punishment to change their

was not until 1999 that the United Kingdom ratified Protocol No. 6 to the

European Convention on Human Rights and Protocol No. 2 of the ICCPR, thus

marking by international treaty its final rejection of capital punishment. There

have been no campaigns since then, in the press, by pressure groups, or in

parliament to seek to reinstate the death penalty. Even the families of the victims

of the most appalling types of crime, like the abduction and sexual murder of

children, have expressed themselves generally as satisfied by a sentence of life

imprisonment, with a guaranteed lengthy period of custody. This rejection of

capital punishment has been further strengthened by a series of cases where the

courts have posthumously reviewed the murder convictions of individuals who

were executed. In 1998, the Court of Appeal found that the conviction of

Mahmoud Hussein Mattan, who was hanged in Cardiff Prison on 8 September

1952, should be quashed. In delivering judgement, Lord Justice Rose stated that

the case had wide significance and demonstrated that “capital punishment was

not perhaps an appropriate culmination for a criminal justice system which was

human and therefore fallible.”

A precondition, under international law, for imposing the ultimate penalty

is that the investigation, prosecution and trial have been conducted with

impeccable fairness and propriety. All too often, capital trials fall short of these

standards. But even when procedural guarantees are improved and the
protection of law is provided to all individuals, wrongful convictions and

miscarriages of justice will still occur. The likelihood of wrongful convictions can

be decreased, but the risk that innocent people will be executed can never be

eliminated altogether as there is no perfect justice system.

In an action plan released by the Federal Department of Foreign Affairs of

Switzerland, it states that No scientific evidence has been produced to date to

prove that the death penalty acts as a greater deterrence to potential offenders

than other severe punishments. It therefore has no impact on the prevention of

crime, violence and violent extremism. The death penalty is frequently misused

to eliminate political opponents. While capital punishment may satisfy the need

for retribution, it does not provide redress for the victims of crime and their

families. Particularly in fragile situations, the death sentence entails the risk of

further alienating citizens from their state rather than promoting confidence in

the state and its judicial system. Capital punishment is ill-suited to a

constitutional state that puts the law above the use of violence and strives to

protect all of its inhabitants. By advocating the abolition of the death penalty,

Switzerland is promoting the protection of human rights and making a

contribution to sustainable peace and security.16 By advocating the abolition of

the death penalty, Switzerland is promoting the protection of human rights and

making a contribution to sustainable peace and security5.

5
FDFA ACTION PLAN FOR THE UNIVERSAL ABOLITION OF DEATH PENALTY 2017.
 B. In favor of the imposition of death penalty

(JOHNSONS DT, 2011) Japan and the USA are the only two rich

democracies that still use the death penalty.

On the surface, public support for capital punishment is even broader in

Japan than it is in the United States. In a recent opinion poll, 81 percent of

Japanese respondents said they favor retaining the death penalty. Since the

Occupation ended in 1952, there have been at least 36 surveys on the subject,

and in almost every instance a large majority expressed support for the death

penalty. The exceptions involved unrepresentative samples and advocacy polls by

abolitionists (though of course government survey questions are not worded

“neutrally” either). During the postwar period there have been smaller

fluctuations in support for capital punishment in Japan than in the United States,

where pro-death-penalty sentiment fell as low as 42 percent in 1966.

In Japan, state officials offer two “arguments from democracy” in order to

explain and justify the continued use of capital punishment. Neither engages the

question of secrecy. The first claim is that abolishing the death penalty despite

public support would undermine confidence in law and perhaps even lead to an

increase in private acts of vengeance. As one prosecutor told me, “If we stopped

2019. Available at
https://www.eda.admin.ch/dam/eda/en/documents/publications/MenschenrechtehumanitaerePolitik
undMigration/aktionsplan-todesstrafe-2017-19_EN.pdf
using capital punishment, people’s respect for law would decline. You may not

notice it for one year or 10 years or even 50 years, but eventually it will happen.”

The second assertion is more fundamental. Since the state should express “the

will of the people,” it is “anti-democratic” to stop capital punishment when most

Japanese support it. Some officials believe this ought to end the discussion. As

another prosecutor put it, “Nothing more needs to be said.” On this vision of

democracy, majorities should rule, and if most people want the death penalty

then the state should use it6.

In an article published by BBC website it states that “First a reminder of

the basic argument behind retribution and punishment: a. all guilty people

deserve to be punished b. only guilty people deserve to be punished c. guilty

people deserve to be punished in proportion to the severity of their crime. This

argument states that real justice requires people to suffer for their wrongdoing,

and to suffer in a way appropriate for the crime. Each criminal should get what

their crime deserves and in the case of a murderer what their crime deserves is

death. The measure of punishment in a given case must depend upon the

atrocity of the crime, the conduct of the criminal and the defenceless and

unprotected state of the victim. Imposition of appropriate punishment is the

manner in which the courts respond to the society's cry for justice against the

6
JAPAN’S SECRETIVE DEATH PENALTY POLICY: COUNOURS, ORIGINS,
JUSTIFICATIONS, AND MEANINGS. Available at
http://blog.hawaii.edu/aplpj/files/2011/11/APLPJ_07.2_johnson.pdf
criminals. Justice demands that courts should impose punishment befitting the

crime so that the courts reflect public abhorrence of the crime. (Justices A.S.

Anand and N.P. Singh, Supreme Court of India, in the case of Dhananjoy

Chatterjee) Many people find that this argument fits with their inherent sense of

justice7.

7
CAPITAL PUNISHMENT. Available at
http://www.bbc.co.uk/ethics/capitalpunishment/for_1.shtml