CURRENT SOCIETAL CONCERNS
Elpidio V. Peria
5 March 2017
As the return of the death penalty has been hugging the news lately, we looked for some write-ups looks at the issue even-handedly and we found one in an almost a hundred year old law journal article, in the Philippine Law Journal, a student-led law journal of the University of the Philippines College of Law and there in its December 1917 issue (On the Abolition of the Death Penalty, Vol. IV, No. 5, pp 169-175), penned by an Associate Professor, M.H. De Joya, is a prescient and still relevant discussion of the pros and cons of the death penalty , with a surprising twist in the end, he said the prisoner carry out the penalty himself!
De Joya divided the camps debating the death penalty into three :
– the first group he called the conservatives, who sought for the preservation and effective use of the death penalty, found their justification for the death penalty not only on the grounds of Nature and History, but also on the ground of deterrence and the consequent decrease and diminution of criminality and the so-called artificial selection eliminating the desirable and the unfit to secure the improvement of the individual and society, considering the penalty imposed as a retribution for the proper defense of society;
– the second group he called the radicals, deny the defensive efficiency of the death penalty as a deterrence, and allege that by making public executions more or less dramatic, they tend to increase criminality by force of example and imitation, converting the criminal into a sort of a hero among the uneducated classes; and that, at most it has no effect on the increase or decrease of criminality and its suppression; and that it is inhuman and revolting and might cause irreparable loss in case of mistake or a miscarriage of justice, citing furthermore the reluctance of courts and juries in imposing the death penalty, often-times acquitting the defendant rather than take the responsibility for his death, and invoking likewise the ever-growing regard for human life and personality.
– the third group he called as holding the middle ground, who argue that it should be applied only in extreme cases- in meritorious cases- preserving it as a sword of Damocles, and a warning to everybody as a punishment that might be possibly be inflicted at any time.
The author then proceeded to examine the validity of the arguments of all three camps but he came to the conclusion that the justice and necessity of capital punishment is justified by Nature and History, including the improvement and defense of the individual and of the race, that it deters criminals and tends to reduce criminality. Responding to the abolitionists’s objections, he suggested that executions should not be made publicly or in the view of the multitude and that other means should be employed such as electrocution or the use of poison and that the prisoner should be permitted to choose the manner in which he shall die, provided the one selected by him is one of the two (electrocution or poison) and that his death, if possible, should be brought about by himself. Then there would be no necessity for the executioner, and prison officials would be relieved of their most revolting and undesirable duty.
Save for the surprising way in which the author tried to relieve the undesirable aspects of the death penalty, the suggestion that the accused himself carry out the penalty may most likely now run afoul of our 1987 Constitution which provides in sec. 19 (1), Article III on the Bill of Rights that no “cruel, degrading or inhuman punishment” be inflicted.
That same article of the Constitution actually already abolished the death penalty but provided a qualifier that, for compelling reasons involving heinous crimes, the Congress may hereafter provide for it.
Now, with the emerging picture on the reimposition of the death penalty focusing on drug-related heinous crimes, based on de Joya’s almost-100 years old write-up, the House of Representatives who supported the bill on the reimposition of the death penalty have taken the side of the 3rd group, that we wanted this death penalty as a sword of Damocles, to warn potential offenders of the harsh consequences of their activities.
Would this rationale for the restoration of the death penalty for drug-related heinous crimes truly serve as an effective warning and possible deterrent given our current realities where the much-vaunted Oplan Tokhang was suspended because the police, as shown in the case of the Korean businessman who was also subjected to extortion, were involved in turning the well-meaning program into a mechanism for the preservation and perpetuation of its corrupt practices?
If there’s an unqualified answer to that question, then perhaps this bill should forthwith proceed, but if the answer to that will be couched in numerous conditions and justifications, then, maybe the focus of reform should be on the police and the penal institutions that we currently have. Whatever happened to that supposed updating of our old and creaking 1930 Revised Penal Code? If only Congress focused its attention to that….