Statement on the Restoration of the Death Penalty and the “Shoot-to-Kill” Policy
The FREE LEGAL ASSISTANCE GROUP [FLAG] strongly opposes the incoming
government’s efforts to restore the death penalty and adopt and implement a “shoot-tokill”
policy. These actions are illegal and unconstitutional, render our legal system
impotent and meaningless, and blatantly violate international law.
The death penalty and “shoot-to-kill” policy are anti-poor.
The death penalty is anti-poor. Seventy-three percent (73%) of the 1,121 inmates on
death row before the death penalty was abolished in 2006 earned less than ten thousand
pesos (Php10,000) a month. Eighty-one percent (81%), in addition, worked in lowincome
jobs as sales, service, factory, agricultural, transport or construction workers.1 If
these numbers are any indication, it is those who live in poverty who will suffer the
most if the death penalty is restored.
The poor also bore the brunt of wrongful death penalty convictions. In the landmark
case of People vs. Mateo,2 the Supreme Court revealed that seventy-one percent (71%) of
the death sentences handed down by the trial courts were wrongfully imposed. This
means that 7 out of 10 convicts on death row–-most of them poor–-were wrongfully
convicted and did not deserve to be there.
The poor are vulnerable to the death penalty because they have no voice, no money, no
power, and lack the resources to hire good lawyers. For exactly the same reasons, they
will also be vulnerable to the proposed “shoot-to-kill” policy of the President-elect.
The death penalty and “shoot-to-kill” policy cheapen human life.
The death penalty and “shoot-to-kill” policy—coupled with the President-elect’s
proposal to employ death by hanging “until the head is completely severed from the
body”3—reflect a callous disregard for human dignity not befitting a Chief Executive.
The Constitution, the Code of Conduct of Public Officials and Employees, and other
laws impose on all public servants the duty to observe, respect, and promote human
rights. Advocating state-sanctioned killings is not just anti-poor but anti-life.
The death penalty and “shoot-to-kill” policy, moreover, will not deter crime–only the
certainty of being caught and punished can do that. What the country needs is a better
justice system–not a new one based on the barrel of a gun.
The restoration of the death penalty blatantly violates international law.
The Philippine Government signed the Second Optional Protocol to the International
Covenant on Civil and Political Rights on 20 September 2006 and ratified it on 20
November 2007 without reservation. The Second Optional Protocol “is the only
international treaty of worldwide scope to prohibit executions and to provide for total
abolition of the death penalty.”4 States that ratify the Second Optional Protocol “are
required to renounce the use of the death penalty definitively.”5
President-elect Duterte is bound by the Second Optional Protocol. In the words of two
highly respected experts on the death penalty, Sir Roger Hood, Professor Emeritus of
Criminology, University of Oxford, and William Schabas, Professor of Human Rights
Law and International Criminal Law, Leiden University —
The Philippines would, if it reintroduced the death penalty, be the only
nation to have abolished it and reintroduced it twice, and the only nation to
reintroduce it having made a commitment to abolishing it by ratifying the
2nd Optional protocol to the International Covenant on Civil and Political
As for the Second Optional Protocol, no State has ever attempted to
denounce the Second Optional Protocol. It would be unprecedented. I think it
would also be illegal. The Human Rights Committee has already made it clear
that denunciation of the Covenant itself is impossible. This was well-known
to the Philippines when it ratified the Second Optional Protocol. Article 6(1)
of the Second Optional Protocol states, ‘The provisions of the present Protocol
shall apply as additional provisions to the Covenant.’ Thus, when [the]
Philippines ratified the Protocol, it agreed that its provisions became part of
the Covenant. And it is impossible to denounce the Covenant, in whole or in
part. If [the] Philippines restores the death penalty, it will be in clear breach of
both the Covenant and the Protocol. This has already happened with Liberia,
which restored the death penalty after ratifying the Second Optional Protocol.
Liberia has had no executions since ratifying the Second Optional Protocol,
however. Given that article 1(2) of the Protocol says, ‘Each State Party shall
take all necessary measures to abolish the death penalty within its
jurisdiction.’, merely enacting legislation for the death penalty, even if it is not
imposed, constitutes a breach of the Protocol and therefore of the Covenant.
If the Philippines reinstates capital punishment (after having ratified the
Second Optional Protocol), the country would be condemned for violating
international law. It would be a great stigma.
The shoot-to-kill policy disregards rights guaranteed by the Constitution.
The 1987 Constitution categorically mandates that “[n]o person shall be deprived of
life, liberty, or property without due process of law.”6 The Constitution further
guarantees the right to be presumed innocent, to be heard, to counsel, to be informed of
the nature and cause of the accusation against him/her, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his/her behalf.
These rights are brushed aside by the shoot-to-kill policy.
The shoot-to-kill policy gives unbridled discretion to law enforcement officers to take
the law into their own hands and act as judge, jury, and executioner. It contravenes
Article 11(1-3) of the Revised Penal Code which authorizes police officers to use deadly
force only when it is reasonably necessary. In the words of Justice Antonio Carpio of the
[…] a policeman is never justified in using unnecessary force or in treating the
offender with wanton violence, or in resorting to dangerous means when the
arrest could be affected otherwise.7
FLAG, therefore, calls upon the President-elect to abandon his plans to restore the death
penalty and impose a “shoot-to-kill” policy.
Quezon City, Philippines, 20 May 2016.
JOSE MANUEL I. DIOKNO
FREE LEGAL ASSISTANCE GROUP [FLAG]
Care of Sanidad Law Offices, 2/f East Side Building, 77 Malakas Street,
Brgy Pinyahan, Diliman, Quezon City, Tel (632-475-7159); Email email@example.com
1 See “Socio-economic Profile of Capital Offenders in the Philippines,” a study conducted by the Free
Legal Assistance Group (FLAG) in 2004, published by the Philippine Center for Investigative Journalism
(PCIJ) and available at http://pcij.org/blog/wp-docs/flag-survey-death-row.pdf.
2 G.R. Nos. 147678-87, 07 July 2004.
3 Philippine Daily Inquirer, 17 May 2016, p. A-6.Philippine Daily Inquirer, 17 May 2016, p. A-6.
4 Article by Pierre Deset published on 27 June 2008, available at http://www.worldcoalition.org/Second-
6 1987 PHIL. CONST., art. III, sec. 1.
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