There seems to be a double standard, said Opposition Representative Cristopher “Kit” Belmonte in a Zoom hearing of the lower chamber on Wednesday, August 5, on the bills seeking a return of the death penalty.

“One of the main reasons why we passed the anti-terror law is because we didn’t want to default on our international obligation, but for death penalty we are saying the argument on our international obligation is not applicable,” Belmonte said in a mix of English and Filipino.

“Parang inconsistent po ‘ata tayo (it seems we’re inconsistent),” Belmonte said.

Belmonte’s colleagues and fellow lawyers, Cagayan de Oro 2nd District Representative Rufus Rodriguez and House Justice Committee Chairman Vicente Veloso, sparred in that Zoom hearing where the Philippines’ international obligations were debated in the push for the death penalty.

Rodriguez believes that to restore the death penalty would be to violate the country’s commitment under the 2nd optional protocol of the International Covenant on Civil and Political Rights (ICCPR), which bans the death penalty. The Philippines is a state party to the 2nd optional protocol of the ICCPR.

Veloso, on the other hand, raised the possibility of the ICCPR 2nd optional protocol running counter to the constitutional provision – Section 19, Article III – that allows Congress to impose the death penalty “for compelling reasons involving heinous crimes.”

UN Security Council resolution vs ICCPR protocol

Opposition to the death penalty is based on the country’s international obligation rooted in its commitment to the 2nd optional protocol of the ICCPR. Advocating for the anti-terror law, on the other hand, is being based on United Nations Security Council Resolution (UNSCR) No. 1373.

Advocates of the death penalty cite the 1987 Constitution that allows Congress to impose it for “compelling reasons” and argue that the Philippines had the death penalty from 1993 to June 2006, but the Philippines became a state party to the 2nd optional protocol in September 2006 and ratified its annex in 2007.

Rodriguez, the Commission on Human Rights, the Integrated Bar of the Philippines, and a legion of human rights lawyers, all believe that the 2nd optional protocol has since been incorporated into Philippine laws such that we are prohibited from reenacting the death penalty.

After all, Section 2, Article II of the Constitution says that the Philippines must “adopt the generally accepted principles of international law as part of the law of the land.”

The Department of Justice (DOJ) evaded that discussion in its latest position paper dated October 2019, but upon interpellation by Rodriguez during the Zoom hearing, Justice Assistant Secretary Nicholas Felix Ty said they “cannot adopt a position that would imply that our Constitution can be amended by treaties or conventions.”

“There’s no conflict,” said Free Legal Assistance Group (FLAG) chairman Chel Diokno, explaining that the Constitution is only permissive but the 2nd optional protocol of the ICCPR is prohibitive.

Diokno also pointed out that the 2nd optional protocol does not allow for withdrawal. “Article 56 of the Vienna Convention on the Law of Treaties specifically states that treaties which do not have provisions on withdrawal or denunciation cannot be denounced or withdrawn from,” said Diokno.

It makes the 2nd optional protocol “a hard law, a binding legal obligation,” said law professor Tony La Viña.

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Fighting terrorism

UNSC Resolution No. 1373 commits member parties to help combat terror. Under it, the UNSC has legal instruments to monitor and designate people and groups as terrorists.

Section 25 of the anti-terror law says the Philippine anti-terror council “shall automatically adopt the UNSC Consolidated List” of designated terrorists.

Under Section 25, those who are tagged as terrorists – by virtue of the power of the executive anti-terror council and the adoption of the UNSC list – would have their assets frozen.

Petitions against the anti-terror law argue that Section 25 is illegal.

More binding obligation

Going by Belmonte’s point, one may ask: if one wants to honor international obligations and not reenact the death penalty, shouldn’t the UNSC resolution be honored as well?

“A resolution is soft law, it’s binding, but obligation is not as strong as that of a protocol,” La Viña said.

“Resolution is like an interpretation of a law which can be changed, challenged and one does not have to accept. And actually a UNSC reso is political and enforced politically,” La Viña added, differentiating a treaty like the ICCPR 2nd protocol from the UNSC resolution.

Violation of due process

In a petition against the anti-terror law filed Thursday, August 6, the Concerned Lawyers for Civil Liberties argued that Section 25 is illegal – not because the UNSC resolution is hollow – but because the way it has been used violates suspects’ due process.

“Section 25 violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what to avoid; and it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle,” said the CLCL petition.

The petition filed by retired senior justice Antonio Carpio said Section 25 is illegal because the suspect cannot challenge the UNSC list.

“If the designation is made by the UNSC, even judicial review under Article VIII, Section 1 of the Constitution will not lie since the actions of the UNSC, which is not a instrumentality of the Philippine Government, are not covered by the words of Article VIII, Section 1 of the Constitution granting the Honorable Court with expanded certiorari jurisdiction,” said the Carpio petition.

Human Rights Commissioner Karen Gomez Dumpit noted that even the UNSC resolution requires member states to “adopt such measures in accordance with international law, in particular, international human rights, refugee and humanitarian law.”

“We are of the opinion that the anti-terror law, as it stands, contains provisions that infringe on human rights such as the vague definition of Terrorism,” Dumpit said.

Sanctions

One of the death penalty bill sponsors, Surigao del Norte Representative Ace Barbers, asked during the Zoom hearing how the Philippines can be sanctioned if it reneges on its ICCPR 2nd protocol commitment.

“Does anyone here know the sanctions meted against those who opted out?” Barbers said in a mix of English and Filipino.

Dumpit cited an economic cost – that we may lose our Generalized Scheme of Preference Plus (GSP+) status which lets Philippine exporters enjoy zero tariffs in trade with the European Union.

Dumpit and Rodriguez also largely cited a reputational cost, that we would be seen in the international community as a rogue country.

“We don’t operate just on our own, we live in a world where we face the international community where we say we are a responsible member of the international community. If we do reintroduce this measure, we will be found in serious breach of our international obligations,” said Dumpit.

For the anti-terror law, “we don’t have a legal obligation to follow a UNSC reso but we can be sanctioned,” said La Viña.

Obviously, the Duterte government is honoring its obligation to the UNSC resolution in the name of the anti-terror law, but is prepared to set aside the ICCPR to pass the death penalty.

When Belmonte asked Ty how the DOJ would reconcile the two, the justice official reverted to a safe answer: “We are not yet certain if reimposing the death penalty would be tantamount to a breach of international obligations.” – Rappler.com