The authors of the communication, dated 6 May 2002, are Jaime Carpo, his sons Oscar and Roche Ibao, and his nephew Warlito Ibao, all Filipino nationals detained at New Bilibid Prison, Muntinlupa City. The authors claim to be victims of violations by the Philippines of articles 6, paragraph 2, and 14, paragraph 5, of the Covenant. The authors are represented by counsel. The Covenant entered into force for the State party on 23 January 1987, and the Optional Protocol on 22 November 1989.
On 14 May 2002, the Human Rights Committee, acting through its Special Rapporteur on New Communications, requested the State party pursuant to Rule 86 of its Rules of Procedure not to carry out the death sentence against the authors whilst their case was before the Committee.
The facts as presented
Prior to 1987, the death penalty existed in the Philippine legal system, with numerous crimes, including murder, that were punishable by death. On 2 February 1987, a new Constitution took effect following approval by the Filipino people consulted by plebiscite. That Constitution, in article 3 (19) (1), abolished the death penalty in the following terms: “Executive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall the 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.”
On 13 December 1993, the Philippine Congress, by way of Republic Act No. 7659, reintroduced the death penalty by electrocution in respect of “certain heinous crimes”, including murder in various circumstances. The substance of the offence of murder remained unchanged.
In the evening of 25 August 1996, a grenade was hurled into the bedroom of the Dulay family. The explosion killed Florentino Dulay, as well as his daughters Norwela and Nissan, and wounded a further daughter, Noemi. On 25 October 1996 and 9 December 1996, the authors Jaime Carpo and Roche Ibao, respectively, were arrested. Thereupon, the remaining authors Oscar and Warlito Ibao gave themselves up.
On 22 January 1998, the Regional Court of Tayug, Pangasinan, convicted the authors of “multiple murder with attempted murder”, sentenced them to death and fixed the sum of civil liability at P600,000. On 4 April 2001, on automatic review of the authors’ case, a 15 judge bench of the Supreme Court affirmed the conviction after extensive review of the facts, and reduced the civil liability to P330,000. As to the sentence of death, the Court considered the case to fall within article 48 of the Revised Penal Code, according to which the most serious penalty for the more serious of several crimes had to be imposed. As the maximum penalty for the most serious crime committed by the authors, i.e. murder, was death, the Court considered article 48 applied, and required the death penalty. The judgement also noted that while four justices of the court maintained their position that the Republic Act No. 7659, insofar as it prescribed the death penalty, was unconstitutional, those justices submitted to the majority ruling of the Court that Republic Act No. 7659 was constitutional, and accordingly that the death penalty should be imposed in the authors’ case.
The Supreme Court also ordered that the complete records of the case be forwarded to the Office of the Philippine President for possible exercise of executive clemency. To date, the President has not granted any form of executive clemency.
The complaint
The authors argue that re-imposition of the death penalty and its application to them is inconsistent with the first sentence of article 6, paragraph 2, permitting the imposition of the death penalty in States “which have not abolished the death penalty”. Furthermore, the authors argue that as “murder” was not punishable by death before the re-introduction of the death penalty, it cannot constitute a “most serious crime” (to which article 6, paragraph 2, permits application of the death penalty) after the re-introduction of the death penalty, when the offence of murder remained otherwise wholly unchanged in terms of its substantive definition.
As to the complaint under article 14, paragraph 5, the authors contend that, under the automatic review procedure, they received “no real review in the Supreme Court”. They claim that they had “no real opportunity to be heard”, since the Court did not allow any oral argument and “practically foreclosed the presentation of any new evidence”. Therefore, according to the authors, the automatic review by the Supreme Court was neither genuine nor effective in enabling a determination of the sufficiency, or soundness, of the conviction and sentence.
The authors state that the same matter has not been submitted for examination under any other procedure of international investigation or settlement.
The State party’s submissions on admissibility and merits
By submission of 8 July 2002, the State party argued that the communication was unsubstantiated and inadmissible in respect of all claims advanced.
Concerning article 6, paragraph 2, the State party considers the argument advanced to be “a normative one” that cannot be considered by the Committee. It is said to be purely an argument on the wisdom of imposing the death penalty for certain offences, while the determination of which crimes should so qualify is purely a matter of domestic discretion. According to the State party, the Covenant does not purport to limit the right of the State party to determine for itself the wisdom of a law that imposes the death penalty. The State party contends that the constitutionality of the death penalty law was a matter for the State party itself to decide, and noted that its Supreme Court had upheld the constitutionality of the law in question. The State party further argues that it does not fall to the Committee to interpret a State party’s constitution for purposes of determining that State party’s compliance with the Covenant.
The State party distinguishes between States that presently have death penalty laws and those that have re-imposed the death penalty after abolition or suspension. It points to the specific provision in the constitutional article abolishing the death penalty that provides for the possibility of Congress to re-impose it. The Covenant does not prevent such a re-imposition, for article 6, paragraph 2, refers simply to countries that have existing death penalty statutes. The requirement of the Covenant is rather that the death penalty be imposed following strict respect for due process rules. In this case, there is no argument that the State party has failed to comply with its own domestic processes.
Concerning the authors’ argument that the death penalty was imposed for crimes that are not the “most serious”, the State party notes that States have a wide discretion in interpreting this provision in the light of culture, perceived necessities and other factors, as the notion “most serious crimes” is not defined any more explicitly in the Covenant. The State party finds fallacious the authors’ reasoning that as the death penalty could not be imposed on any crime before re-imposition, no crime could be deemed a “most serious” one that could be punished by the death penalty after re-imposition - the crime of murder remained, and remains, amongst the most serious in the domestic order, including as measured by gravity of possible punishment then available.
As to article 14, paragraph 5, the State party rejects the author’s arguments, for each person sentenced to death automatically receives an appeal. Moreover, the failure to grant a hearing on oral argument does not indicate lack of genuine review, for the long-standing practice of the Court is only to hear oral argument in cases presenting novel questions of law. As to executive clemency, the State party notes that, under its law, this prerogative remains within the purely discretionary power of the President. While any such request for clemency will be received and acted upon, the substance of the outcome remains within the President’s discretion.
The author’s comments
By letter of 24 November 2002, the authors responded to the State party’s submissions. They observe that by becoming party to the Covenant and the Optional Protocol, the State party accepted the ability of the Committee to assess whether its actions are consistent with the provisions of those instruments. By reference to article 6, paragraph 6, of the Covenant, the authors identify an “abolitionist stance” in the Covenant that does not envisage a retreat from abolition, as made by the State party. As to the State party’s alleged discretion to determine the content of the notion of “most serious crimes”, the authors note that international consensus restricts these to crimes not going beyond intentional crimes with lethal or other extremely grave consequences. The authors note, by contrast, that the lengthy list of offences punishable by death in the State party includes such crimes as kidnapping, drug-related offences, plunder and qualified bribery.
Regarding article 14, paragraph 5, the authors note that the absence of oral argument in the authors’ case prevented the Supreme Court from making its own assessment of witness testimony and required it to rely on the assessment of the lower court. The authors argue that no effective review is possible where the Court has to weigh the credibility of the accused against that of the victim without being able to hear the testimony of key witnesses.
The authors refer to subsequent developments, including a newspaper article, suggesting that even though the President had in early October 2002 announced a ban on executions until further notice in order to provide the Congress with an opportunity to pass abolition legislation, preliminary preparations for the authors’ execution had already been taken. While the President had recently granted reprieves to some convicts scheduled for execution, to date the authors had not received any such notice. Additionally, execution of the authors would appear to be unlawful under domestic law, as it would come after the 18 month period prescribed by law as the maximum time that may elapse without execution after judgement has become final.
Subsequent exchanges with the parties
Despite invitations to do so by reminders of 27 November 2002 and 8 January 2003, the State party has not added further submissions on the merits to those supplied concerning admissibility.
Consideration of admissibility
Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.
The Committee notes that the State party’s only contention as to the admissibility of the authors’ claims is that they are unsubstantiated, in the light of a variety of argumentation going to the merits of the claim. Accordingly, the Committee considers it more appropriate to deal with the issues raised at that point. In the absence of any further obstacles to admissibility, therefore, the Committee finds the authors’ claims admissible.
Consideration of the merits
The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5, paragraph 1 of the Optional Protocol.
As to the claim under article 6, paragraph 2, of the Covenant, the Committee observes at the outset, in response to the State party’s argument that the Committee’s function is not to assess the constitutionality of a State party’s law, that its task rather is to determine the consistency with the Covenant alone of the particular claims brought before it.
The Committee notes that the offence of murder in the State party’s law entails a very broad definition, requiring simply the killing of another individual. In the present case, the Committee observes that the Supreme Court considered the case to be governed by article 48 of the Revised Penal Code, according to which, if a single act constitutes at once two crimes, the maximum penalty for the more serious crime must be applied. The crimes committed by a single act being three murders and an attempted murder, the maximum possible penalty for murder - the death penalty - was imposed automatically by operation of the provisions of article 48. The Committee refers to its jurisprudence that mandatory imposition of the death penalty constitutes arbitrary deprivation of life, in violation of article 6, paragraph 1, of the Covenant, in circumstances where the death penalty is imposed without regard being able to be paid to the defendant’s personal circumstances or the circumstances of the particular offence. It follows that the automatic imposition of the death penalty upon the authors by virtue of article 48 of the Revised Penal Code violated their rights under article 6, paragraph 1, of the Covenant.
In the light of the above finding of a violation of article 6 of the Covenant, the Committee need not address the authors’ remaining claims which all concern the imposition of capital punishment in their case.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 6, paragraph 1, of the Covenant.
In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective and appropriate remedy, including commutation. The State party is under an obligation to avoid similar violations in the future.
Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the Committee’s Views. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]