OFFICE OF LEGAL AFFAIRS

EXTREMELY URGENT

MEMORANDUM FOR THE ASSISTANT SECRETARY, UNIO

FROM : LEO TITO L. AUSAN, JR.

Acting Assistant Secretary

SUBJECT : Reinstatement of Death Penalty in the Philippines

DATE : 10 February 2017

Further to OLA’s Memoranda dated 05 August 2016, 04 January 2017, and 23 January 2017, this
Office wishes to provide the following additional inputs for inclusion in the Department’s Position
Paper on the Reinstatement of Death Penalty in the Philippines. The same provides both
historical perspective and the corresponding legal bases for DFA’s position that the Protocol is an
executive agreement which does not require the concurrence of the Philippine Senate for its
ratification.

The Department considers the Second Optional Protocol to the International Covenant on Civil
and Political Rights, Aiming at the Abolition of Death Penalty (Second Optional Protocol) as an
executive agreement.

1. Article III, Section 19 paragraph (1) of the 1987 Philippine Constitution provides that
"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. . ." laid down the foundation for the
Philippine policy regarding the issue of death penalty. [underscoring supplied]

2. On 13 December 1993, Congress passed Republic Act No. 7659 entitled “An Act to Impose
the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised
Penal Laws, As Amended, Other Special Penal Laws and for Other Purposes,” which
provided for the imposition of the penalty of death for certain heinous crimes.

3. Following the passage of RA 7659, Congress enacted Republic Act No. 8177, otherwise
known as the “Act Designating Death by Lethal Injection,” on 20 March 1996 specifically to
amend Article 81 of the Revised Penal Code, which provides for “putting the person under
the sentence to death by lethal injection.”

4. Then on 24 June 2006, Congress decided to change the government policy on the issue of
death penalty and approved Republic Act No. 9346 which effectively banned the imposition
of death penalty.

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 5. On 22 September 2006 or almost three (3) months after the passage of RA 9346, the
Philippine government signed the Second Optional Protocol to the International Covenant
on Civil and Political Rights, Aiming at the Abolition of Death Penalty (Second Optional
Protocol).

6. Guided by the prevailing national policy; i.e. the non-imposition of death penalty, as well as
relevant legislations for that matter, the Department of Foreign Affairs, through the Office
of Legal Affairs, determined/classified the Second Optional Protocol as an executive
agreement. Following its determination, the Department of Foreign Affairs submitted the
Second Optional Protocol to the President for ratification on 21 November 2006, pursuant
to the provisions of Executive Order No. 459, series of 1997.

7. Then Philippine President Gloria Macapagal Arroyo ratified the Second Optional Protocol
on 25 April 2007. Subsequently, the original Instrument of Ratification of the Second
Optional Protocol was deposited with the UN Secretary-General on 20 November 2007 in
accordance with Article 8, paragraph 1 thereof.

8. In determining whether or not an international agreement requires Senate concurrence, in

addition to presidential ratification, the Department is guided by the principle enunciated
by the Supreme Court in the cases of USAFFE Veterans vs. Treasurer of the Philippines,
et. al. (1959), and Commissioner of Customs vs. Eastern Sea Trading (1961). In the said
cases, the Supreme Court drew the distinction between a treaty and an executive
agreement, to wit:

International agreements involving political issues or changes of national policy

and those involving international agreements of a permanent character usually
take the form of treaties. But international agreements embodying
adjustments of details carrying out well-established national policies and
traditions and those involving arrangements of a more or less temporary
nature take the form of executive agreements. [emphasis supplied]

9. Following the Supreme Court rulings on the above-stated cases, Executive Order No. 459,
s. 1997 was issued. According to EO 459, the Department of Foreign Affairs, through the
Office of Legal Affairs, “shall determine whether an agreement is an executive agreement
or treaty.” Section 2 of EO 459 defines treaties as “international agreements entered into
by the Philippines which require legislative concurrence after executive ratification,”
whereas executive agreements are “similar to treaties except that they do not require
legislative concurrence.”

10. In the case of the Second Optional Protocol, the Department determined the agreement
to be an executive agreement since it is “merely embodying adjustments of details carrying
out well-established national policies.” The prevailing national policy at the time of the
signing was the non-imposition of the penalty of death. In fact, RA 9346, which abolished
death penalty, was passed three (3) months prior to the Philippine signing of the Second
Optional Protocol.

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 11. There being no need for an enabling legislation to put the Second Optional Protocol
into effect and its provisions are merely implementation of an established Philippine
national policy, the Department of Foreign Affairs determined the Second Optional
Protocol as an executive agreement which only requires presidential ratification in order
to take effect.

For the Assistant Secretary’s information and reference.

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