Karen S. Gomez Dumpit[1]
This year, we commemorate the 75th year of the adoption of the Universal Declaration of Human Rights (UDHR) and the 30th anniversary of the Vienna Declaration and Programme of Action (VDPA). Both of these documents became the anchor for achievements in human rights work.
The UDHR is celebrated as a "common standard of achievement for all peoples and all nations” and recognizes that all humans as being "born free and equal in dignity and rights" regardless of "nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status”[2] while the VDPA was adopted as the common plan for the strengthening of human rights work around the world after the cold war.[3]
Both instruments have reaffirmed the universality, indivisibility, and interrelatedness of human rights. They are the inspiration to many advocacies including the campaign to abolish death penalty.
The world movement for the abolition of capital punishment is anchored on the right to life, considered as a supreme right[4] and the fountain[5] from which all other human rights emanate[6] the foundation as well as the condition of their existence.[7]
Article 3 of the UDHR states that
Everyone has the right to life, liberty and security of person.
While the UDHR does not specifically mention the death penalty, it is elaborated in the standard setting treaty, the International Covenant on Civil and Political Rights under Article 6[8] which reads as follows:
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
At the time of the ICCPR’s adoption in 1966, many countries maintained death penalty in their justice systems, the second section of Article 6 clarifies that it can only be used for the most serious of crimes:
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
Furthermore, it also underscored the exhaustion of all remedies including pardon or commutation, its non-applicability to children and cannot be carried out on pregnant women.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
In the final section of ICCPR’s Article 6, the goal of abolition is set and along with its progressive application:
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
The right to life is considered by many anti-death penalty advocates to be absolute, an inherent violation of the right to life[9], and that even states cannot take away. Under this absolute view of every human being’s right to life, capital punishment can never be justified.[10]
Dealing with the issue of death penalty features not only Article 3 of the UDHR. This discussion will not be complete without asserting that it is the utmost form of torture.[11][12] Article 5 of the UDHR is clear on the proscription of torture:
No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.
In like manner, the VDPA positively cites the ratification of the United Nations Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and stresses that efforts to its eradication be concentrated on prevention.[13]
Lastly, those who are accused of crimes subject to capital punishment must have the rights to due process as enshrined in UDHR Article 10:
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
The UN Human Rights Committee[14] has interpreted the right to life citing that “it does not disavow capital punishment but limits the imposition of a capital sentence to the most serious crime. Moreover, a capital sentence can only be pronounced upon conclusion of a trial in which all the guarantees of due process have been scrupulously observed under article 14 ICCPR”[15]. It concluded that “all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40 ICCPR”.[16]
The 75 years of the UDHR and 30 years of the VDPA gives us pause on how far we have gone, what we have gained, and how much more we can go to reach our goal to abolish death penalty in all corners of the world.
44 years after the adoption of the UDHR and 33 years after the ICCPR has gifted the anti-death penalty movement with a “decisive new momentum” as the United Nations General Assembly adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty (ICCPR - OP2) in 1989.[17] States party to the ICCPR - OP2 have the obligation not to execute anyone within their jurisdiction and commit to abolish the death penalty.
From 2007, a host of UN General Assembly Resolutions on the Moratorium on the Use of the Death Penalty have succeeded this milestone (geared primarily towards retentionists) urging Member States to respect international standards to progressively restrict its use and reduce the number of offenses which are punishable by death.[18]
Aside from the elaboration of instruments on the right to life and the death penalty, gains have been logged in the number of countries that have acceded to the ICCPR (173 State Parties, 6 Signatories)[19] and the Second Optional Protocol (90 State Parties)[20], as well those that have signed onto the UNGA Resolutions on the Moratorium on the Use of the Death Penalty.
When UDHR was adopted, only 14 countries had abolished the death penalty and even countries that had mandatory death penalty did not impose executions.[21] Today, we see the number of abolitionist countries grow — hurdling the hump and moving closer to universal abolition.[22]
Ensemble Contre la Peine de Mort / Together against Death Penalty (ECPM)[23] reports that 74% of the 198 UN member states no longer execute prisoners, i.e. they are either abolitionist (60%) or have a moratorium on executions (14%). In 2022, out of 198 United Nations Member States, 111 are abolitionist states for all crimes, 10 abolitionist states for ordinary crimes, 26 states have a moratorium on executions. Only 51 states are retentionist.[24]
In 2022, Amnesty International has recorded 883 executions in 20 countries — a 53% increase from 579 people, including 24 women, known to have been executed by 18 nations in 2021 – up by 20 percent from 2020.[25][26] Though hard to determine, there were at least 2,016 death sentences amongst 52 countries in 2022 compared to 2,052 death sentences amongst 56 countries in 2021. There were at least 28,282 people known to be under sentence of death at the end of the year.
Asia is seen as the region with the most executions as recorded global totals do not include the thousands of executions that Amnesty International believes were carried out in China, where data on the death penalty are classified as a state secret.[27]
Even during the Covid-19 pandemic, there were death sentences promulgated by a Singapore court through Zoom.[28] In Southeast Asia, executions were carried out in Myanmar and Singapore; in South Asia, India and Bangladesh, and Taiwan, in East Asia, and in the Middle East, Oman and Qatar.[29]
As the Secretary General of Amnesty International, Agnes Callamard puts it “as the world focused on finding ways to protect lives from Covid-19, several governments showed a disturbing determination to resort to the death penalty and execute people no matter what . . . pursuing executions in the middle of a pandemic further highlights its inherent cruelty.”[30]
While we see a narrowing of crimes covered death penalty on a global level, a concentration is observed on the death for drugs narrative. And this is probably where I can take off to share the success story (so far) in rejecting the calls for the reintroduction of the death penalty in the Philippines.
With the Commission on Human Rights of the Philippines’ (CHRP) lead role in the resistance against death penalty, we highlight the added value of the VDPA’s “most tangible outcomes — [the] world-wide recognition of national human rights institutions as key independent promoters of human rights".[31] There were fewer than 10 such institutions at the beginning of the 1990s: today there are 120[32] which are internationally accredited.[33]
The Philippines holds the distinction of being the first country in Asia to totally abolish the death penalty only to directly introduce it later on. The abolition of the death penalty, which immediately took effect upon ratification of the 1987 Constitution, does not prevent the legislature from re-imposing it at some future time.[34]
In 1993, a series of “heinous” crimes occurred in the early part of the Fidel Ramos Administration. This led to the passage of RA No. 7659 that re- imposed death penalty. It listed a total of 46 crimes punishable by death; 25 of these are death mandatory while 21 are death eligible. Republic Act No. 8177 mandates that a death sentence shall be carried out through lethal injection. With the amendment of Republic Act No. 8353 (Anti-Rape Law of 1997) and Republic Act No. 9165 (Comprehensive Dangerous Drugs act of 2002), there were 52 capital offenses, 30 of which are mandatory and 22 are eligible for the death penalty.
In 1999, President Joseph Estrada put to death seven (7) death row convicts. 1999 was a bumper year for executions which were intended to abate criminality. Instead, using the same year as baseline, criminality increased by 15.3% as a total of 82,538 (from 71,527 crimes in the previous year). Giving in to appeals of groups against the death penalty including the Roman Catholic Church, President Estrada issued a moratorium on execution in observance of the ‘Jubilee year’.[35]
The practice of ‘not carrying out executions' was then initiated and carried over to the administration of President Gloria Macapagal Arroyo. On 5 December 2003, President Arroyo announced the lifting of the de facto moratorium on executions. A rise in drug trafficking and kidnappings that victimized mainly the Filipino Chinese community was cited as one reason to ‘sow fear into the hearts of criminals’.[36]
As executions were poised to resume in January 2004 plans were halted because of the reopening of the capital case where the Supreme Court vacated the decision of the lower court and ordered the admission of newly discovered evidence, exonerating the accused from culpability.[37] Since then, the administration has been issuing reprieves on scheduled executions without actually issuing a moratorium.
On 24 June 2006, the Death Penalty was again abolished through Republic Act No. 9346, otherwise known as “An Act Prohibiting the Imposition of the Death Penalty in the Philippines”.
This law became the basis for President Arroyo to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty on 20 November 2007. Perhaps this is the best legacy that the Arroyo Administration has given our nation as it effectively bound the government against its reintroduction.
Soon after this victory, the human rights community, particularly the Coalition against the Death Penalty (CADP) where the CHRP is a member[38] thought that this advocacy could already be concluded. But upon reflection, we thought that we needed to stay because extra judicial killings (which we consider another form of death penalty) were still occurring and on the rise at the time. And this proved to be the right decision.
Fast forward to then Mayor Rodrigo Duterte’s rise to the presidency. His campaign promise and banner program was to rid the country of drugs by waging war against it and committing to restore the death penalty to prevent criminals from wrongdoing. Despite maintaining popularity amid his bloody war on drugs, he was not successful in bringing back this inhumane punishment.
If the Philippines were allowed to reintroduce the death penalty, then we will be the first to reverse the progressive tide towards universal abolition. The human rights community warned of reputational repercussions citing that we will be marked with ignominy as the country that turned back on its perpetual commitment and legal obligation to end capital punishment.
How did we succeed? We certainly did not do this alone.
The President’s rhetoric resonated with the general public and was carried by his allies in Congress. There was a well-funded social media support for the war on drugs — the troll army. The human rights community already faced unpopular support for the advocacy and the demonization of human rights did not help any as anti-death penalty advocates were all labeled criminal coddlers.
So, we were forced to go back to basics. Administration allies questioned the ratification process citing that it was unconstitutional for the ICCPR-OP2 to not have gone through the Senate for its concurrence and therefore, we can withdraw from the treaty. With the assistance from the academe particularly the Australian National University, we came up with a legal study — In Defense of the Right to Life: International Law and Death Penalty in the Philippines together with Dr. Christopher Ward.[39] Along with other researchers and together with civil society, we presented this in hearings, popularized it through our communication channels, in conferences and public events, and reported the developments to the human rights mechanisms including the universal periodic review, special procedures, and the treaty monitoring bodies. The wealth of information and analyses we have gathered was the product of cooperation with organizations like Capital Punishment Justice Project[40] and Monash University's Anti-Death Penalty Clinic led by Sara Kowal.[41]
We concluded that International Law will be unaffected by any domestic action whether to withdraw from the protocol and/or reintroduce the death penalty. If we do act contrary to the object and purpose of the ICCPR-OP2, then we will be found to be in serious breach of international law.
Pro-death penalty advocates also claimed that the public wanted the death penalty, so with the expertise of a leading market research organization, the Social Weather Stations, we conducted the first ever comprehensive national survey on the death penalty. Our survey showed that if people were given a choice, 7 out of 10 would not choose the death penalty. And this prompted us to frame our issues with solutions — effective alternatives to address and prevent crime.[42] [43] The inspiration of this survey came from our participation in the 6th World Congress Against the Death Penalty where presentations of Dr. Mai Sato on “The Public Opinion Myth: Why Japan Retains the Death Penalty” served as an inspiration to conduct our own survey. In the same event, we learned of Oslo University’s project, Universities against the Death Penalty. This also served as a template in our Community Based Dialogues on the Death Penalty which we brought to schools in different parts of the country.
We also expanded our arguments and leveraged our benefits under the European Union’s Generalized Scheme of Preference plus that also holds us to our obligation to respect and implement human rights commitments including the ICCPR and the Protocol. We stated that to restore the death penalty will impact our standing in the international community. There will be implications on trade agreements like the GSP+ putting at stake industries and communities benefiting from this program. It effectively expanded our audience to include the greatest beneficiary of this trading scheme, the tuna fishing industry among many other beneficiary sectors.
Moreover, we also argued on the basis of real life cases like that of Overseas Filipino Worker, Mary Jane Veloso.[44] We cited that it will be counterproductive for international cooperation for transnational crimes and we lose the moral high ground (apart from being hypocritical) when we appeal for the lives of migrant workers facing the death penalty.
We talked about facts on the death penalty, and launched a communication campaign backed by research to inform the general public about the issues including the disproportionality of the measure where those facing execution are mostly poor, with no access to competent counsel or with an education that empowers them with knowledge about their rights and we cited the Supreme Court’s decision citing the error rate of over 70% in the imposition of the death penalty.
We joined forces with our local parliamentarians who called on their networks like the ASEAN Parliamentarians for Human Rights and the Parliamentarians for Global Action, to help rally our call to stop the reintroduction.
At the end of his term, President Duterte failed to reintroduce the death penalty.
Demagogues will always use the death penalty to show that they are tough on crime and will mislead the public through misinformation and fake news that the death penalty works to deter crime and will keep the public safe. It does not. It is up to us to ensure that we contribute to the global movement to end the death penalty.
Perhaps the greatest lesson that the Philippines example shows is that the advocacy work must continue. Through the Anti-Death Penalty Asia Network[45] and the World Coalition Against the Death Penalty[46], we continue share our story and lessons to help build capacity in the campaign to abolish the death penalty.
There are many other stories and lessons to share in this struggle but I highlight four factors that led us to this success: a robust civil society, a strong national human rights institution, right to life champions in government, and international solidarity in action that stands on the firm foundations set by the UDHR and the VDPA.
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[1] Karen S. Gomez-Dumpit currently serves as an Executive Committee Member of the Anti-Death Penalty Asia Network, a Vice-President of the World Coalition Against the Death Penalty, and the Project Officer of the Coalition Against the Death Penalty - Philippines. She is a Former Commissioner of the Commission on Human Rights of the Philippines (CHRP). The CHRP Focal Commissioner who led the campaign against the reintroduction of the death penalty during the Duterte Administration. She has been working in the campaign against the death penalty since the beginning of her career at the CHRP in 1993, the year of the Vienna Conference on Human Rights.
[2] https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf
[3] https://www.ohchr.org/en/about-us/history/vienna-declaration
[4] General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights on the Right to Life, adopted by the Human Rights Committee on its 124th Session on 8 October 2018 to 2 November 2018.
[5] Report of the UN Special Rapporteur on Summary and Arbitrary Executions, 31 January 1983.
[6] As quoted in the Commission on Human Rights of the Philippines Advisory CHR (V) A2022-002 25 April 2022.
[7] Riga, Peter, Capital Punishment and the Right to Life: Some Reflections on the Human Right as Absolute, University of Puget Sound Law Review Vol.5:23. Available at https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1127&context=sulr
[8] https://www.ohchr.org/en/topic/death-penalty/international-framework
[9] https://cdn.penalreform.org/wp-content/up loads/2015/06/HRC-Article-6-submission.pdf
[10] Riga, Peter, Capital Punishment and the Right to Life: Some Reflections on the Human Right as Absolute, University of Puget Sound Law Review Vol.5:23. Available at https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1127&context=sulr
[11] https://www.cnnphilippines.com/news/2020/8/5/CHR-death-penalty-utmost-form-torture-.html
[13] https://www.ohchr.org/sites/default/files/Documents/Events/OHCHR20/VDPA_booklet_English.pdf
[14] The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its States parties, https://www.ohchr.org/en/treaty-bodies/ccpr
[15] Schmidt, Markus G., Universality of Human Rights and the Death penalty — the Approach of the Human Rights Committee, ILSA Journal of Int'l & Comparative Law, Vol. 3 page 477.
[16] Ibid. Schmidt cites the Human Rights Committee’s General Comments under Article 40, Paragraph 4 of the Covenant, 1982 Y.B. on H.R., General Comment 6(16), Article 6, at 196-7, U.N. Sales No. E.88.XIV 6.
[17] https://www.ohchr.org/en/topic/death-penalty/international-framework
[18] Office of the High Commissioner for Human Rights, Death Penalty: The International Framework, https://www.ohchr.org/en/topic/death-penalty/international-framework#
[19] OHCHR Website, Status of Ratifications Interactive Dashboard, https://indicators.ohchr.org/
[20] https://indicators.ohchr.org/
[22] https://www.aljazeera.com/news/2022/10/10/infographic-which-countries-still-have-the-death-penalty-2: By the end of last year, 108 countries had abolished the death penalty for all crimes, eight countries had abolished the death penalty for crimes not committed during times of war and 28 countries still retained the death penalty but had not executed anyone over the past 10 years.
[23] https://www.ecpm.org/en/history/ ECPM (Together against the death penalty) has been campaigning since 2000 for the universal abolition of the death penalty through advocacy, awareness-raising activities and by uniting international abolitionist forces. Since 2000, ECPM has been supporting the creation of national and regional coalitions, conducting educational activities with young people, carrying out fact-finding missions on death row and building the capacity of local actors. Every three years, the association organises the World Congress Against the Death Penalty, the world’s largest abolitionist event.
[24] https://www.ecpm.org/en/barometer/ ECPM provides the following definitions:
[25] https://deathpenaltyinfo.org/policy-issues/international/executions-around-the-world
[26] https://www.aljazeera.com/news/2022/10/10/infographic-which-countries-still-have-the-death-penalty-2
[27] Ibid.
[28] https://www.hrw.org/news/2020/05/27/singapore-judge-issues-death-sentence-zoom#
[29] https://adpan.org/bangladesh-execution-during-covid-pandemic/and https://www.amnesty.org/en/latest/press-release/2021/04/death-penalty-2020-despite-covid-19-some-countries-ruthlessly-pursued-death-sentences-and-executions/
[30] Agnes Callamard, Secretary General of Amnesty International, https://www.amnesty.org/en/latest/press-release/2021/04/death-penalty-2020-despite-covid-19-some-countries-ruthlessly-pursued-death-sentences-and-executions/
[31] https://ganhri.org/wp-content/uploads/2023/11/StatusAccreditationChartNHRIs_Nov23.pdf There currently 88 A-Status NHRIs and 32 B-Status NHRIs (full and partial Compliance to the Paris Principles, respectively).
[32] Ibid.
[33] https://www.ohchr.org/sites/default/files/Documents/Events/OHCHR20/VDPA_booklet_English.pdf
[34] Bernas, Joaquin, The Constitution of the Republic of the Philippines, A Commentary, 2009. The 1987 Constitution reads in Article III, section 19(1) that effective upon its ratification: “The death penalty shall not 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’. Bernas continues to say that the State Policy, as embodied in the 1987 Constitution is therefore, one of prohibition where the imposition of capital punishment is an exception. It is abolitionist in perspective, and embodies the core value of protecting the right to life and upholding human dignity.
[35] https://www.philstar.com/headlines/2016/04/30/1578705/journeyto30-crime-and-punishment#
[36] Commission on Human Rights Philippines, The Philippine Experience in Abolishing the Death Penalty
[37] https://www.philstar.com/headlines/2004/02/20/239653/high-court-new-trial-2-kidnappers-death-row and Rueda-Acosta, Persida v., ‘Death Penalty not a deterrent to Criminality’, CHRP-EU Human Rights
[38] The Coalition against the Death Penalty (CADP). A coalition of organizations and individuals opposed to the death penalty and working towards Justice. https://www.facebook.com/CADP.ph/
[41] https://www.monash.edu/law/research/eleos/home
[42] https://newsinfo.inquirer.net/1347478/most-pinoys-buck-death-penalty-study
[44] https://www.nytimes.com/2015/04/30/world/asia/mary-jane-veloso-indonesia-execution.html
[45] https://adpan.org/
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DTP acknowledges the traditional custodians of the land on which we work, the Bedegal people of the Eora Nation. We recognise their lands were never ceded, and we acknowledge their struggles for recognition and rights and pay our respects to the Elders – past, present – and the youth who are working towards a brighter tomorrow. This continent always was and always will be Aboriginal land.
Aboriginal and Torres Strait Islander peoples should be aware that this website contains images or names of people who have passed away.
We are a proud partner of UNSW Law & Justice
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