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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 these cases demands that they be settled promptly and definitely, brushing aside… technicalities of procedure.” The Echegaray cases, People vs. Echegaray (267 SCRA 682) [hereinafter, Echegaray I] and Echegaray vs. Executive Secretary (297 SCRA 754) [hereinafter Echegaray II], are not, and cannot be, the last word on the death penalty constitutionality issue. These are cases of mandatory death penalty, not discretionary death penalty like the case at bar. Echegaray I itself ruled (at pp. 722-23) that “As to other crimes in R.A. No. 7659 punished by reclusion perpetua to death [e.g. murder]… The proper time to determine their heinousness in contemplation of law, is when on automatic review, we are called to pass on a death sentence involving crimes punishable by reclusion perpetua to death under R.A. No. 7659, with the trial court meting out the death sentence in exercise of judicial discretion.” We submit that it is not only heinousness of the crime that is to be determined in such case but also the constitutionality of the punishment. But to quote further the guidance from Echegaray I (at p. 723): “Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be imposed when: (1) aggravating circumstances attend the commission of the crime as to make operative the provision of the Revised Penal Code regarding the imposition of the maximum penalty; and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of death, albeit the imposable penalty is reclusion perpetua to death.” (underscoring supplied) The two sets of circumstances must concur. At this juncture, we have to seize the moment to point out that in the trial court’s appealed judgment of conviction imposing five death sentences there is only discussion of the aggravating circumstances but no discussion, not even mention, of the key other circumstances like “heinousness” and “compelling reasons” that might justify the imposition of the death penalty. On this score alone, therefore, the death penalty should Page 20 of 127 20
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 be eliminated as an imposable penalty, if any there is to be, in the case at bar. We want to get this sword of Damocles, as it were, out of the way first before proceeding to show the innocence of the accused-appellants. In a way, this reverses the order or sequence of the two-step process of decision- making or voting by the High Tribunal in capital cases: first the issue of the guilt of the accused, then the question on the imposition of the death sentence itself (People vs. Purazo, G.R. No. 133189, May 5, 2003). We now proceed to argue the unconstitutionality of the death penalty not only in murder cases but in all cases, at least in the operative framework of the present death penalty law, RA 7659. As the separate (dissenting) opinion in Echegaray I already noted: “RA 7659 did not change the nature or the elements of the crimes stated in the Penal Code and in the special laws. It merely made the penalty more severe… RA 7659 itself merely selected some existing crimes for which it prescribed death as an applicable penalty… By merely reimposing capital punishment on the very same crimes which were already penalized with death prior to the charter’s effectivity, Congress I submit has not fulfilled its specific and positive constitutional duty. If the Constitutional Commission intended merely to allow Congress to prescribe death for these same crimes, it would not have written Sec. 19 of Article III into the fundamental law. But the stubborn fact is it did.” The 1987 Constitution, Art. III, Sec. 19(1) reads: “Excessive 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. Any death penalty already imposed shall be reduced to reclusion perpetua.” Based on this provision, the Supreme Court itself recognized “the abolition of the death penalty” in People vs. Masangkay (155 SCRA 113), People Page 21 of 127 21
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