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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 ARGUMENTS I. THE TRIAL COURT ERRED IN IMPOSING AN UNCONSTITUTIONAL PENALTY, THE DEATH PENALTY, AT LEAST FOR MURDER UNDER R.A. NO. 7659. The trial court, in its appealed Joint Decision of July 30, 1999, found all accused- appellants GUILTY of MURDER “with the aggravating circumstances of treachery (absorbing abuse of superior strength) and evident premeditation,” and sentenced each “to suffer the penalty of DEATH,” but which, we submit, is an unconstitutional penalty. R.A. No. 7659, at least insofar as it classifies murder as a heinous crime and metes the death penalty therefor, is unconstitutional. Conventional wisdom has been that “It is a well-established rule that a court should not pass upon a constitutional question and decide a law [or part of it] to be unconstitutional or invalid, unless such question is raised by the parties, and that when it is raised, if the record also presents some other ground upon which the court may rest its judgment, that course will be adopted and the constitutional question will be left for consideration until a case arises in which a decision upon such question will be unavoidable.” (Sotto vs. Comelec, 76 Phil. 516, 522; Lalican vs. Vergara, 276 SCRA 518; Co Chiong vs. Dinglasan, 79 Phil. 122) Thus, in People vs. Pinca (G.R. No. 129256, November 17, 1999), where the third issue was the constitutionality of the reimposition of the death penalty on the crime of murder, the Court did not find the resolution of this issue the very lis mota of the case. Similarly, in the earlier parricide case of People vs. Malabago (265 SCRA 198), the Court also ruled that “Death not being the lis mota of the instant case, the Court has to await for a more appropriate case to pass upon the constitutionality of R.A. No. 7659, as amended.” That has been the conventional wisdom. But there is a time also for unconventional wisdom. To quote by analogy the dissenting opinion of Mr. Justice Page 18 of 127 18
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 Santiago M. Kapunan in the Balikatan exercises case of Lim vs. Executive Secretary (G.R. No. 151445, April 11, 2002), “The issues raised are of transcendental importance… If the time is not ripe to challenge the continuing affront against the Constitution and the safety of the people, when is the right time? When the countryside has been devastated and numerous lives lost?” In like manner, how many more murder cases on automatic review and how many more lethal injection executions will it take before “a more appropriate case” comes along? RA 7659 has been in the statute books since 1993 or for 10 years already. What could be a more appropriate murder case than this celebrated Abadilla murder case? In fact, murder rather than rape (the crime in the Echegaray cases) is a most appropriate case for a re-examination of the constitutionality of the death penalty (and the Echegaray rulings), in fact not just for murder but for all cases. The irony is not lost on us that a certain magistrate, Judge Fulco, once wrote: “…I can state that nothing gave me the sort of bad conscience I felt in the face of the kind of administrative murder that is called capital punishment.” 1 (italics supplied) This Court en banc itself once said in similar terms: “The case at bar involves the imposition of the death penalty. With all our frailties, we are asked to play the role of an infallible God by exercising the divine right to give or take away life. We cannot err in the exercise of our judgment for our error will be irrevocable. Worse, our error can result in the worst of crimes – murder by the judiciary.” (People vs. Alicante, G.R. No. 117487, December 12, 1995, italics supplied) And what can be more transcendental than death, whether by murder or by execution? As early as the Emergency Power Cases (Araneta vs. Dinglasan, 84 Phil. 368; Rodriguez vs. Gella, 93 Phil. 603), the Court has allowed taxpayer’s suits where serious constitutional issues are involved since, “the transcendental importance to the public of 1 As quoted in Fr. Fausto B. Gomez, O.P., “The Death Penalty and Healthcare Professionals” (University of Sto. Tomas, Manila, February 7, 1997). Some arguments here are used in this brief. Page 19 of 127 19
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