Transcript of Comm. Karen Gomez-Dumpit Oral Arguments

Committee on Justice, House of Representatives

05 August 2020

 

Thank you very much and your honors.

 

We have been asked to concentrate on relevant human rights instruments on death penalty, of course we with the International Covenant on Civil and Political Rights. If we take a look at the ICCPR, we have ratified this on Oct. 23, 1986 and it brings us to Article 6 where it says that “every human being has an inherent right to life and that right should be protected by law and no one shall be arbitrary deprived of this right.”

 

 

The Human Rights Committee in charge of monitoring this particular treaty, in its General Comment No. 36 states that Art 6 par. 2 which contains the obligation where countries have not abolished the death penalty sentence of death may be imposed only for the most serious of crimes. It recognizes and protects the right to life of all human beings where no derogation is permitted even in situations of armed conflict and other public emergency which threatens the life of a nation. It is a fundamental right shoes effective protection is a pre-requisite for the enjoyment of all other human rights. Just to say that upon the ratification of ICCPR in 1986 and together with the 1987 Constitution abolishing the death penalty, we were already barred from introducing this particular measure because of the progressive obligation that we have as a state party to the ICCPR. In short, in 1993 with the passage of RA 9346 when we reintroduce death penalty, we already violated this progressive obligation to maintain the abolitionist stand of the 1987 Constitution.

 

I now proceed to the Second Optional Protocol to the ICCPR which we ratified on November 20, 2007, and it has a two-fold obligation; 1) we have committed ourselves not to execute anyone within our jurisdiction and; 2) we will take all the necessary measure to abolish death penalty within our jurisdiction (network interruption-inaudible). In this case, your honor (network interruption) prior to our ratification of the Second Optional Protocol because of the 1987 and because of the of passage of RA 9346. With our ratification, the Philippines is under obligation to respect and fulfill these two commitments in the Second Optional Protocol. The human rights committee also in its General Comment, that like in the ICCPR, the Second Optional Protocol does not contain any opt out term in its provision and the state parties cannot denounce it. Abolition of death penalty is therefore legally irrevocable and furthermore, state parties may not transform an offense which upon ratification of the covenant or at any time thereafter did not entail the death penalty into capital offense.

 

The Commission believes that with the enactment of RA 9346 prohibiting the imposition of death penalty, the Senate is deemed to have concurred with ratification of the Second optional Protocol. Congress then had overwhelmingly supported the abolition of the death penalty with the total of 120 votes in the House and a total of 16 votes in the Senate. The total number votes that allowed the passage of RA 9346 therefore meets the required 2/3 votes of all members of the Senate and it involves the entire Congress. The instrument is also deemed ratified when it was deposited in the UN in November 20, 2007. Given that the UN has accepted our instrument, and deemed our act a s a ratification, we must emphasize that there is a continuing obligation of the state to fulfill its commitment under international law. A change of government does not permit withdrawal. This is the doctrine of continuity of obligation. In our case, there is no change in government but a change of administration. If in a change of government, you are not allowed, what more if it’s just a change of administration. Just to also reiterate that in the Vienna Convention on the Law of Treaties particularly on the termination of treaties, Arts 46 par 2, Arts 54, 56 par 1 the provision to terminate a treaty must be included within the treaty for it to apply. In this case, there is no opt out provision to the two treaties that I have mentioned (the ICCPR and the Second Optional Protocol).

 

We proceed to the Philippines as a state party to the international treaties that are inconsistent with the death penalty for narcotic offenses. I mention 1961 Single Convention on Narcotic Drugs and the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psycho-tropic Substances. The provisions of these conventions have this particular formulation that punishable offenses when committed intentionally and that serious offenses shall be liable to adequate punishment particularly only by imprisonment or other penalties of deprivation of liberty. That is in the 1961 Single Convention, a similar formulation is found in 1988 convention which refers to imprisonment, deprivation liberty, pecuniary sanctions and confiscation which appear (network interruption) UN Convention Against Illicit Traffic in Narcotic Drugs and Psycho-tropic Substances. So, in any event, there is an obligation under customary international law to move towards the abolition and that obligation is inconsistent with the re-imposition of death penalty.

 

I proceed now to CAT, and we believe that death penalty is an. Utmost form of torture. We have already enacted an anti-torture act top implement cat and under this act of 2009 it is considered torture when there is use of psycho active drugs to change the perception, memory, alertness, or will of a person such as the use of drugs to induce in extreme pain. To illustrate, we also raise the issue of botch executions which occur when there is a breakdown in or departure from the protocol for a particular method of execution. The protocol can be established by the norms, expectations, and advertised virtues of each methods or by the government’s officially adopted execution guidelines. Examples include being administered wrong dosages of specific drugs for lethal injections sometimes allergies caused by these drugs can also trigger severe pain and instead of quickens “painless” as methods of (network interruption).

 

*interrupted by Chair Velasco

 

The voting patterns of the Philippines l in the UN General Assembly and the Human Rights Council, we have consistently in the 10 resolution over the many years (from 2007 to the present), we have consistently voted in favor of moratoriums on the death penalty except on the last 3 resolutions on the moratorium in Dec. 2016, Oct. 2017, Dec. 2018 where we have abstained on the resolution.

 

And the last po is the repercussions on the re-introduction of the death penalty. Just to say that there are repercussions particularly on OFWs on death row; if death penalty is reinstated the ability of the DFA to negotiate on behalf of the OFWs will be undermined and more=over, our country will be considered as hypocritical if we re-impose death penalty in our country but at the same time seek the lives of our OFWs who are in death row abroad. Second, of course, is the confidence of the Philippines as member of the international community where we have been considered at the forefront of the promotion and protection of human rights. With the international treaties that we have signed, the reinstatement will amount in the violation of many international treaties that we have signed, and which will not only affect our economy but also our dealings with the international community. There will also be difficulty in cooperation on dealing with transnational crimes.

 

And second to the last point your honor, the reinstatement of death will cause the withdrawal of benefits or may cause the withdrawal of benefits we are enjoying under GSP+ which is a trade agreement that has signed with the EU and under this scheme, the Philippine export products to the EU, we enjoy zero tariff benefit and previous reports on the assessment of GSP+ has stated that the reintroduction of death penalty would be a major step backwards and raise questions regarding the Philippine international commitment and this was reiterated in the most recent assessment released in February 2020 by the EU. The joint report to the EU or the European Parliament and Council states that preserved tuna is highlighted as a product which has particularly benefitted from the growth in the Philippine export to the EU market under GSP. Preparation of food and fish comprised around 12.5% of Philippine GSP exports to the EU and if the Philippine loses its GSP status, tuna exporters would be required to pay 20.5% tariffs. In 2018, EU imported about 1.9billion euros worth of Philippine products under the GSP trade preference. Other products that will be affected are coconut oil, pineapple product, footwear, optical products and electrical machineries.

 

At this point in time that we are in a pandemic, we want to emphasize that we cannot afford the repercussions that the reinstatement of death penalty will cause. As a last note your honor, the death penalty is (network interruption), it is an utmost form of torture and can only bring counter-productive effects in our efforts to curb and punish crimes.

 

Marami pong Salamat!

 

 

Chair Veloso:

 

Let me go back to Art 2 Sec 2 of the Constitution, when we say gen accepted principle of international law, we bear in mind its general acceptance by the nations. In Asia, I note that it’s only the Philippines that has no death penalty. Additionally, Russia, china, us, they also impose death penalty, but more disturbing is your observation that there’s only change in administration, and with the ratification of the international covenant congress has no longer power to pass death penalty law. Now, let me read Sec 19 Art 3 excessive fines shall not be imposed, cruel, inhuman and degrading punishment neither death penalty shall be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it. In my understanding of a Congress, we have 17^th, 18^th and past and future congress. Its not a pale case of change in administration that would bar us in exercising the powers of legislation. Here, death penalty is a proper subject for deliberation and enactment of Congress. What can you say about that Commissioner Karen?

 

Comm. Karen:

 

Thank you, your Honor. What we have just presented of course is a demonstration of our role to recommend to Congress effective measures to implement human rights and to be able to monitor compliance with human rights treaties and standards, your Honor. In that respect, what we are trying to say to is that even if we go ahead and re-impose death penalty we will be found in serious breach of international law. Nevertheless, international law will. Not affect our bid to re-introduce death penalty and we will be still considered as state party your honor. In respect to continuity of obligation, what we are trying to say is that there is a continuing obligation regardless of change of administration and what we are pointing at is that it is a state obligation to be able to comply with the hr treaties that we have acceded to or we have ratified.

 

Chair Veloso:

 

You are now admitting that the Congress has the power to pass the death penalty law? As the way in Article 3 of the Constitution.

 

Comm. Karen:

 

The Constitution says for compelling reasons your honor and it is our position that there is no compelling reasons to reintroduce death penalty your honor. It is also confined to a most serious of crimes and most serious of crime we have not been able to reserve our ratification so most serious of crimes does not include imposition of dp on illegal drugs as I have mentioned also mentioning also (network interruption) on drugs that we have mentioned your honor.

 

Chair Veloso:

 

We are now down to compelling reason meaning in the matter of authority to pass the law jurisdiction-wise. You now concede that Congress has the power to pass the law?

 

Comm. Karen:

 

If it will be read your, your honor; Section 2 on the provision of capital punishment, we cannot law that because there is no compelling reason to re-introduce death penalty.

 

 

 

 

Chair Veloso:

 

Two things; compelling reason is one thing, the power pass the law is the other. Anyway, let me go to another point. Can international covenant you cited amend the Constitution? Speaking of Art. 2 Sec 2 and Sec 19 Art 3 of the Constitution?

 

Comm. Karen

 

No. We have to read them together your honor. We have the article of incorporation so we have to read them together and interpreting, the Constitution we have to reconcile this provisions that seems to be countering one another. But we are of the position that we are riding on our obligations, where we have committed to in perpetuity, by virtue of ratifying second not to reimpose dp and the second is not to be able to execute under our jurisdiction. So those are the two of our obligation it’s also found in our Constitution by virtue of the articles of incorporations.

 

Chair Veloso:

 

All things are settled; 1 we have the authority/power to pass dp law and 2) we can entertain your objection under the so-called compelling reasons clause in sec 19 art 3 of the constitution. A lot of our colleagues can actually support your position and we are in fact intending to hear them that the reason we have this committee meeting.

 

Rep. Abante:

 

I’m just interested to find out what are the compelling that Comm. Karen is talking about that would compel us to pass dp. What should be the compelling reason? That would allow us to pass dp. It means that drug menace that we have today is not a compelling reason?

 

Comm. Karen:

 

There is no compelling reason your honor and to say that there is a provision in the Constitution of course that says heinous crimes and we equate that to a most serious of crimes and int the most serious of crimes in international law if you will have a listing of that, drugs is not found in those list your honor. We believe there is no compelling reason to impose dp.

 

Chair Veloso:

 

In that regard, Comm. Dumpit, again, it is for congress to appreciate this compelling reason and for the President to veto it or approve whatever Congress will pass. Going back, I was really disturb by your proposition that we have no power to pass this law in light of inter covenant especially that there is only a change of administration but not in the power of congress tom pass legislation cause we are divided to several Congress. We can repeal, modify, or pass any law as long as it is not unconstitutional that’s why I brought into fore the question of whether or not that international covenant has effectively amended the Constitution noting that rt 17 of our Constitution lay down the procedure by which we can amend theConstituion. That being the case, is there is any other interpellation from our colleague and members?

 

Rep. Belmonte:

 

Laging po kasi ginagamait ng gobyerno of which the CHR is part, ng executive ung international obligation natin. In fact, ung pinag uusapan natin, pinagdedebatihan natin ang Anti-Terrorism Law ang number 1 reason, one of the main reason kaya natin inimplement yun is magiging in default tayo of our international obligation. While I do not dispute our sovereign right to enact our own laws. Parang inconsistent naman tayo ngayon, in one hand sabi nila kailanagan natin, hindi tayo maging in default sa international obligation natin kaya kailangan natin ipasa ung ATL . pero dito sa dp, sa mga international con vention na pinirmahan din natin and magiging in default din tayo and magkakaron din tayo ng penalties, eh hindi ho applicable ung argument ng international obligation po natin. Maari ho ko lang ba malaman ano ung difference bakit in one hand pwede, oblige tayo in the other hand hindi tayo oblige. Maybe the CHR may help us here.

 

Comm. Karen:

 

Of course, we can say that the obligation is deemed incorporated because of the incorporation clause and treaties are part of the law of the land. Sa amin po sa Commission, is we have to respect our commitment and we don’t operate just on our own, we live in a world where we face the international community and we say that we are a responsible member of the international commitment and this is actually part of our obligation; in fact its part of our Constitutional obligation by virtue of articles of incorporation clause.

 

Because by the very act of congress also in passing the act prohibiting the imposition of dp has become the basis now for the Philippines to ratify the Second Optional Protocol, your honor. In that case, if we do re-introduce this measure, we will be found in serious breach of this obligation, you honor.

 

Cong. Rodriguez:

 

You agree that if we impose dp we will violate Sec 2 Art 2 of the Constitution which say that the Philippines adopts the generally accepted principles of international law do you believe that this will be in violation of this provision? And the reason for that is you said we are a signatory to the ICCPR especially I. its Second protocol which really commits our country not to execute within out=r jurisdiction any of our detainees aor convicted person. Is that correct?

 

Comm. Karen:

 

Yes, your honor.

 

Cong Rodrigiuez:

 

Do you believe that the provisions of our Consti on art 3 section 19 which says that we cannot impose cruel, degrading and inhuman punishment cannot be inflicted? Does the CHR believe that the re-imposition of dp will be in violation of. Sec. 1 Art 3 of Bill of rights?

 

Comm. Karen:

 

Yes, your honor. Torture is absolutely proscribed. No country in the world will say that they are inflicting torture your honor. So, it’s an international nor. So yes, your honor.

 

Cong. Rodriguez:

 

You are saying that dp is a cruel infliction on people of Philippines?

 

You are saying also that dp is a degrading infliction on those convicted. Is that correct?

 

Comm. Karen:

 

Yes, your honor. Because how can we demonstrate that killing is wrong when we kill ourselves.

 

Cong. Rodriguez:

 

You’re also saying that punishing our convicted persons by death will certainly an inhuman punishment because you get his self and what can be inhuman than getting a life of Filipino. Is that correct?

 

Comm. Karen:

 

Yes, your honor.

 

Cong. Rodriguez:

 

So, we have now two, acceding to CHR, violation of the Consti. 1) violation of our declaration of principle and state policies Sec 2 Art 2; and of course, the prohibition of dp has reached the level of customary international law, is that correct?

 

Comm. Karen:

 

Yes, more than 2/3 of the world countries, actually 142 countries had abolished dp.

 

Cong. Rodriguez:

 

If we are going to impose dp, then we therefore violate not only our Consti because it adopts the generally accepted principle of international law which is the treaties signed by many countries but because we will violate the customary international law

Comm. Karen:

 

Yes, your honor.

 

Cong. Rodriguez:

 

That the second point. The third Constitutional violation if we impose dp. Don’t you agree that the employment of physical, psychological, or degrading against any detainees in prohibited, is there a violation of our congress if we will re-impose dp as provided for by ART. 3 sec 19(2) which says we cannot employ physical, psycho, or degrading punishment against any detainee. Would that be the position of CHR?

 

Comm. Karen:

 

Yes., your honor

 

Cong. Rodriguez:

 

Thank you. In other words, Mr. Chairman and our Commissioner, clearly, the Consti will be violated with the imposition of dp and that is why we are reminded that we have approved in 2006 RA 9346 prohibiting the imposition of dp. As to the question of the Chairman, will these treaties violate and therefore amend our Consti. For example, the ICCPR and the Second Optional Protocol, will this violate our constitution?

 

Comm. Karen:

 

They do not your honor.

 

Cong. Rodriguez:

 

In fact, these treatise (ICC and second) optional protocol do not violate our consti but in fact reinforces our consti because precisely our consti adopts them as part of the law of the land. So, there is no conflict on those treatise that we have ratified and signed. It in fact reinforces our Constitution.

 

We have already established that these treaties are already part of the law of the land by incorporation under our state policies. You mentioned ICCPR and the protocol. Can you repeat the Philippines commitment in the Second Optional Protocol which if we violate will have a great repercussions on our standing in our league of nation, our united nations in the international commitment. What are our commitments there?

 

Comm. Karen:

 

1. No one within the jurisdiction of the state part shall be executed and; 2) Each state party shall take all the necessary measure to abolish death penalty within its jurisdiction.

 

Cong. Rodriguez:

 

In fact, through RA 9346, the second commitment have been complied with. Correct? By abolishing dp in our country. Correct?

 

Comm. Karen:

 

Actually, your honor, we have already complied with it when we ratified by plebiscite the 1987 Constitution which has an abolitionist stand. We violated it when we re-impose dp in 1993 but we corrected ourselves in 2007 in the RA 9346. And when we ratified it in 2007, we are already compliant with the optional protocol, your honor.

 

Cong. Rodriguez:

 

Thank you for the lecture on history and the lecture on the ratification by our Constitution which was voted in accordance with the case of Javellana vs Executive Secretary, the voting of hands has already in 1973 been able to approve the Constitution.

 

Can you tell us again how our Senate has been able to ratify the second protocol?

 

Comm. Karen:

 

It was more than a concurrence in the Senate that has happened. 120 votes in the HRep and 16 votes in the Senate which is 2/3 of the Senate so we are in the position to say that it was more than the concurrence of the Senate because it was the act of Congress that prohibited the imposition of dp.

 

Cong. Rodriguez:

 

The Vienna Convention on the Law of treaties govern treaties such as ICCPR and Second Optional Protocol and other conventions. You stated that if you want to terminate the treaties by having the dp again re-imposed, practically we are terminating our obligation under the ICCPR and the second protocol. Is that correct?

 

Comm. Karen:

 

The effect is that we will be in serious breach because international law will be unaffected by that even if we re-impose it.

 

Cong. Rodriguez:

 

If we wish to terminate our obligation under iccpr and the second protocol, the Vienna convention require that the termination of the treaties must have an opt out provision. Correct?

 

 

 

Comm. Karen:

 

Yes, your honor.

 

Cong. Rodriguez:

 

Finally, do you categorically state that we cannot in any way terminate our ratification and our approval of this treaties?

 

Comm. Karen:

 

Yes, your honor.

 

Cong. Rodriguez:

 

If we withdraw, we have Filipino right now on death row because of heinous crimes one in Indonesia, and the other in Middle East. If we will impose this, we have no moral backing to be able to go to these countries and say “save our Filipinos from your dp”. Is that correct?

 

Comm. Karen:

 

Yes, your honor. We become hypocritical actually.

 

Cong. Rodriguez:

 

Yeah, we ourselves had placed dp how can we ask reprieve, how can we ask leniency in other countries if we ourselves are inflicting dp.

 

If we re-impose dp, there will be repercussions on our trade agreement and the GSP+ which gave our products preferential treatment on tariffs will be withdrawn. Is that the effect of the dp on gsp under the EU?

 

Comm. Karen:

 

Yes, your honor. Because when we applied for the benefit, we said that we will follow the commitments that we have ratified and joined and part of that is the ICCPR, your honor.

 

Cong. Rodriguez:

 

Finally, we all agree and accept that we are in a pandemic and people are dying. This is really a grave situation as far as life is concern in our country and we of course are working hard to preserve life in our country under this pandemic. Therefore, don’t you agree that at t this time if we will re-impose dp will exacerbate our situation so that during this time when people are dying, we are going to re-impose death that more people will die during this times. Do you agree with that?

 

Comm. Karen:

 

Yes, your honor. We have not only lost lives, but we have lost livelihoods also and this will exacerbate it certainly.

 

Chair Velasco:

 

In the light of your arguments thar we are a signatory to the ICCPR and the second = can you say that even w/o this constitutional provision that we adopt generally accepted principle of IL that we are bound to abolish dp?

 

Comm. Karen:

 

Yes, your honor. We are member of UN, ng human rights council. Obligasyon po natin iyon.

 

Chair Velasco:

 

You said that Congress cannot opt out to the international convention, this will be a perpetuation of a mistake, yan po ba ang punto nyo?

 

Comm. Karen:

 

We are oblige to follow the commitments that we have made before the international commitment and dp is a false promise, is not a deterrent. Solid police work, law enforcement, vigilance in the ground are better measures your honor. In fact, in the Senate, the SEPO conducted a study and one of the ways by which we can have a deterrence is to provide for resources to our PNP, to increase the police to population ratio which is only one of the ways by which we can deter crime, your honor.

 

Chair Velasco:

 

Ako nga baka bumoto against the dp law, ang punto ko lang ay dapat o di dapat ipasa is one thing, ang authority natin na magpasa ng batas ang tinutumbok ko. One last question, sino ang nag iimplement ng UN protocol, international covenant mismo?

 

Comm. Karen:

 

Nagmomonitor po ang human rights council sa monitoring body. In fact po by October we will be under review by the human rights council and one of the list of issues there is the re-imposition of death penalty.

 

Chair Velasco:

 

Sino ang nag i-implement o magpapatupad ng Second protocol?

 

 

Comm. Karen:

 

It’s the whole of the UN your honor but part of that is ourselves being a state-parties to this bodies. Kasama po tayo sa pag implement nito.

 

 

Chair Velasco:

 

Dalawa ang super bodies ng UN, UN General Assembly, UN Security Council. Alin sa dalawa ang mag implement nito?

 

Comm. Karen:

 

It could be both. But more specifically there is a mechanism for the human rights council, we are a member of that. 47 or 48 state-parties are member of human rights council and they are the ones tasked to ensure the implementation of this treaty, your honor.

 

Chair Velasco:

 

Can they ensure implementation even if there is a veto for example Russia and China?

 

Comm. Karen:

 

Yes, your honor. Because their processes are different when they pass resolutions. Like Congress, they get to vote, and they have their own internal procedures, your honor. But normally if a resolution is adopted and we have agreed to that then we are duty-bound to implement the commitment found in those reso lutionand other treaties, your honor.

 

Rep Atienza:

 

Just one question to the honorable lady who has been very effective. Would you know if US, Russia, China, signed the covenant abolishing the death penalty in their country?

 

Comm. Karen:

 

Your honor, they are not state parties to the ICCPR nor the second. As we said they still have death penalty in their policy and practice, your honor.

 

Rep. Atienza:

 

We would like to thank the lady for your very very steadfast standing on the facts of legal issues that we as a coutnry have committed to. In the face of the very incisive, knowledgeable questions of the Hon. Rufus Rodriguez, you have stood your ground. Salamat po sapagkat marami kaming, katulad po ng inyong lingkod, kaming mga Congressmen eh excited kami sa aming idea na kailangan naming ng tinig ninyo pero kailangan m,akining kami sa inyo. Maraming pong Salamat!

 

Marami pong Salamat!

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