REPUBLIC OF THE PHILIPPINES

First Judicial Region

DMMMSU COLLEGE OF LAW
City of San Fernando, La Union

AFFIRMATIVE, Criminal Case No. 22222

Plaintiff,

versus FOR: RESTORATION OF DEATH

PENALTY

OPPOSITION,
Defendant.
X---------------X

MEMORANDUM
(for the Affirmative)

COME NOW PLAINTIFF, through the undersigned counsel, unto this Honorable
Court most respectfully submit and present this Memorandum in the above-titled case and
aver that:

STATEMENT OF THE CASE

President Rodrigo Duterte and some lawmakers have called for the return of the death
penalty as a way to strengthen the rule of law.

The Death Penalty was abolished under the 1987 Constitution. The Ramos
administration reintroduced the death penalty by virtue of Republic Act No. 7659 in
December 1993 to address the rising criminality and incidence of heinous crimes, which
mandates that a death sentence shall be carried out through lethal injection. In 2006, during
the presidency of Gloria Macapagal-Arroyo, Congress abolished again capital punishment.

Prospective speaker Pantaleon Alvarez and Capiz Rep. Fredenil Castro authored
House Bill 01 which provides for lethal injection as the mode of state-sanctioned killing for
heinous crimes. The bill seeks to reimpose capital punishment for human trafficking, illegal
recruitment, plunder, treason, parricide, infanticide, rape, qualified piracy, bribery,
kidnapping, illegal detention, robbery with violence against or intimidation of persons, car
theft, destructive arson, terrorism and drug-related cases.

STATEMENT OF THE FACTS

The country is a party to the International Covenant on Civil and Political Rights
(ICCPR) an international treaty that, among other things, prescribes states to respect and
observe fundamental freedoms. These include freedom of expression, freedom of religion,
and freedom from cruel, inhumane, or degrading punishment.The Philippines signed the
ICCPR on December 19, 1966 and ratified it on October 23, 1986. It opted to sign the
Second Optional Protocol on September 20, 2006. The annex was ratified on November 20,
2007. Article I of the Protocol states that: 1) No one within the jurisdiction of a State Party to
the present Protocol shall be executed, and 2) Each State Party shall take all necessary
measures to abolish the death penalty within its jurisdiction.1

ISSUES

Given the foregoing facts and circumstances, the following issues are presented for
discussion:
1. Whether or not the Philippines, as a party to the ICCPR, is allowed to restore death
penalty?
2. Whether or not death penalty is unconstitutional?
3. Whether or not death penalty deters crime?
4. Whether or not death penalty infringes right of life?
5. Whether or not death penalty costs the government less as opposed to life
imprisonment?

ARGUMENTS

1. Although a party to the ICCPR, the Philippines is allowed to restore death

penalty.
2. Death penalty is not unconstitutional and does not violate the Article III, Bill
of Rights, Section 19 of the Philippine Constitution which provides that
Executive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides
for it.
3. Death penalty deters would-be criminals to commit felonies.
4. Death penalty is a just punishment for crimes committed against the rights to
life, freedom and safety of victims.
5. Death penalty is less expensive than life imprisonment.

DISCUSSION

1. It is true that the Philippines is in fact under a legal obligation not to restore the
death penalty. This is an obligation in law that it took upon itself when the Philippine
government ratified the Second Optional Protocol to the Covenant on Civil and Political
Rights. Article I of the Protocol states that: 1) No one within the jurisdiction of a State Party
to the present Protocol shall be executed, and 2) Each State Party shall take all necessary
measures to abolish the death penalty within its jurisdiction. 1 However, these provisions from
the Protocol can be conflicting with the 1987 Constitution which does not expressly declare
the abolition of the death penalty. A reading of Section 19 (1) of Article III will readily show
that there is really nothing therein which expressly declares the abolition of the death
penalty. The provision merely says that the death penalty shall not be imposed unless for
compelling reasons involving heinous crimes, the Congress hereafter provides for it and, if
already imposed, shall be reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough". Nothing is more defining of the true content of Article III,
Section 19 (1) of the 1987 Constitution than the form in which the legislature took the
initiative in re-imposing the death penalty. The Senate never doubted its power as vested in it
by the constitution, to enact legislation re-imposing the death penalty for compelling reasons
involving heinous crimes. 2
One significant fact that must be considered is that international law does not
hold a position of primacy in our jurisdiction. In our country, the one standard that embodies
1
Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death
penalty, Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989.
2
People of the Philippines vs. Leo Echegaray y Pilo, G.R. No. 117472. February 7, 1997.
the legality of actions and the definition of rights is our Constitution. The Constitution reigns
supreme and whenever international law (understood for the moment to be treaties or
customary law) is in conflict with the former, then the Constitution will prevail. Without
question, this is a legal policy we share with a number of other jurisdictions, such as the
United States. Like any law, international law as a source of rights and cause of action could
be restricted or restrained, particularly if required by the States police, eminent domain, or
taxation powers. The application of a treatys provisions within our jurisdiction, again as a
source of a cause of action, could be amended by a mere subsequent Republic Act if
Congress, in its discretion, decides to do so. Thus, declarations by officials that the
Philippines cant do a certain measure because its hands are tied by international law are
false. Within our borders, the Philippines generally can do what it wants even if such goes
against international law: the Congress can enact laws, the Executive branch can issue
measures implementing the law, and the Judiciary can rule and uphold such law even if that
law conflicts with international law. This is because, as previously stated, within our
jurisdiction the one dominant and primary standard is the Constitution. As long as that law is
constitutional, then - even if it is violative of international law - such law is valid as far as
the Philippines (internally) is concerned.3

2. Death penalty is not unconstitutional. The 1987 Constitution does not expressly
declare the abolition of the death penalty. The Congress may restore it on two conditions:
First, it shall be only on heinous crimes and second, it was restored only upon proof of
compelling reasons.

Our prison system is overcrowded, brutal, poorly-policed, and ridiculously violent.

Capital punishment might be cruel compared to a humane prison system that tries to
rehabilitate criminals, but our prisoners are essentially being sentenced to brutal torture.

Extreme overcrowding is the most punishing aspect of doing time in jails maintained
by the Bureau of Jail and Management Penology (BJMP), which is an agency of the
Department of Interior and Local Government. The Bureau of Jail Management and
Penology (BJMP), with its limited resources, has been struggling to meet the standard
minimum rules for treatment of prisoners set forth by the United Nations. 4At the Manila City
Jail and other prisons in the National Capital Region, inmates have to take turns sleeping on
the floor. Over congestion also brutalizes life in penitentiaries and in provincial jails.The
BJMP has set an accommodation space of three (3) square meters for each inmate. 5 The
projected populations of national prisons administered by the Bureau of Corrections, an
agency of the Department of Justice and the jails maintained by the provincial governments
must be as dreadful.Prison conditions were rudimentary and sometimes harsh. Provincial
jails and prisons were overcrowded, lacked basic infrastructure, and provided prisoners with
an inadequate diet.Prison administrators budgeted a daily subsistence allowance of about
$0.78 (P40) per prisoner. Prison inmates often depended on their families for food because of
the insufficient subsistence allowance and the need to bribe guards to receive food rations.6

Herding individuals in cramped spaces is cruel, inhuman, ill, degrading, and unjust
punishment. Overcrowding is dangerous to health and to human life. It breeds diseases,
breaks down discipline and exacerbates tensions. Having to fight for air and space 24 hours a
day make prison, in the words of inmates, a living death. Add dirty tap water, dingy toilets,

3
International Law and Philippine law, March 24, 2007. (http://jemygatdula.blogspot.com/2009/03/international-law-
and-philippine-law.html)
4
Rule 10, Part I of the UN Standard Minimum Rules for the Treatment of Prisoners states that: "All accommodation
provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due
regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and
ventilation."
5
With total cell area of its jails at 56,982 square meters, BJMP should be able to accommodate only 18,944 inmates. As of
August 2009, BJMP facilities hold a total of 57,007 inmates nationwide, translating into a 201% congestion level. (See
Speech of Senator Loren Legarda, Senate Session Hall, December 13, 2011).
6
Prison and Detention Center Conditions, March 6, 2007. (http://www.state.gov/j/drl/rls/hrrpt/2006/78788.htm)
substandard meals, gang war, poorly trained guards and prison administrators, favoritism,
and you have a system built for punishment, not for rehabilitation. This is not the enlightened
approach to penology which is reform geared towards a subsequent productive life upon re-
entry to the community. It is a throwback to the 18th century that treated prisoners as animals
unfit to renew themselves and re-join society.7

Putting people in prison for life is, therefore, horrible torture. Releasing prisoners is
inflicting criminals on society. If we're not going to rehabilitate our prisoners, it seems better,
from both a moral and a utilitarian point of view to inflict capital punishment.
3. Advocates of death penalty cite examples on how imposing the death sentence or
abolishing it have affected crime rate. According to a study conducted in the late 1960s,
there was a 7% crime rate increase on the years when this law was abolished. On the other
hand, fewer crimes were committed with the increase in number of inmates in the death row
who were executed each year. Proponents say that these figures clearly indicate the efficacy
of capital punishment on deterring crimes.

Our prison system is a machine for creating and improving criminals. It forecloses
any possibility of a realistic non-criminal life post-prison, and puts criminals in contact with
other criminals. When we put someone in prison, we're basically guaranteeing recidivism.

The idea of deterrence is that if the punishment is bad enough, it will deter people
from committing the crime, and those who are not deterred are used as examples to scare and
continue to deter others. Deterrence is educational because it demonstrates to others what
will happen if certain crimes are committed and it reaffirms the moral values of society. Van
den Haag believes that if a severe punishment, like the death penalty was not used in
response to crime, Criminals would have gained an advantage by breaking the law, while
the law abiding would have been placed at a disadvantage by trusting the law (van den Haag
141). So, in order for deterrence to be effective, punishment needs to be consistent and
reliable. Pojman and van den Haag agree that the death penalty is the best deterrent because
People (including potential criminals) fear death more than they do any other humane
punishment (Pojman 60).

4. It is the right of an individual to live peacefully and be free from harm.

Unfortunately, crimes like murder, rape and assault are committed by perpetrators who have
no regard for life and property of others. Since they violate other peoples lives, it is but fair
that they are brought to justice and suffer the fate they rightfully deserve. People who are for
capital punishment also talk about free will wherein an individual is given the right to do
things in his or her own volition and he or she is responsible for his or her own fate.

It is per se immoral for a government to kill its subjects. To some extent, however, it's
incoherent; surely no one would argue that a policeman in the line of duty should not be able
to shoot an armed gunman, or that killing in self-defense should not be allowed. The death
penalty, at least when applied to murderers who are deemed incapable of rehabilitation, is
merely a form of generalized self-defense.

The death penalty will result in the killings of innocents. This may be true but any
sort of criminal justice system, no matter how favorable to defendants, will invariably
convict innocents some time. Its not clear why it's a horrible thing for the government to kill
innocents, but not so horrible for it to imprison and torture them.

Death Penalty is Retribution.......

7
The Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (OPCAT) Report, The Condition of Philippine Prisons and Jails.
(http://www.preda.org/media/research-documents/the-condition-of-philippine-prisons-and-jails/).
 5. Proponents say despite expenses incurred by the government from imposing capital
punishment, death penalty is still cheaper compared to the costs of life without parole.
Although there is no contention that the cost of the former is high, life imprisonment is
accumulatively higher given the expenses for food, health care and other costs of sustaining
the lives of incarcerated individuals serving life.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that judgment be

rendered in favor of plaintiff and against defendant by:

Other just and equitable remedies under the circumstances are likewise prayed for.

City of San Fernando, La Union, November 25, 2016.

(Sgd.) ATTY. TEAM AFFIRMATIVE

Counsel for Plaintiff
DMMMSU, College of Law,City of San Fernando, La Union
IBP Lifetime No. 22222; 11/25/2016
PTR No. 22222; 11/25/2016
Roll of Attorney No. 2016-22222
MCLE Compliance No. III 22222

Copy furnished:

ATTY. TEAM OPPOSITION

Counsel for Defendant
DMMMSU, College of Law
City of San Fernando, La Union