SEPARATE OPINION

CARPIO, J.:

I concur with the ponencia of Justice Josue N. Bellosillo finding appellant Solomon Purazo guilty of the crime of qualified rape and imposing on him the penalty of reclusion perpetua instead of death.

The rape committed by appellant on his own 11-year old daughter is indisputably qualified by minority and relationship.  The trial court is mandated to impose the death penalty on appellant pursuant to Republic Act No. 7659, commonly called the Death Penalty Law which imposes the death penalty on heinous crimes.  However, on automatic review, the Supreme Court is not mandated to impose the death penalty just because the accused is guilty of a heinous crime.  The Death Penalty Law requires an overriding condition before one adjudged guilty of heinous crime can be meted out the death penalty.  If a majority of the members of the Court do not vote to affirm the death penalty, the penalty is automatically reduced to reclusion perpetua.

Article 47 of the Revised Penal Code provides that “the death penalty shall be imposed in all cases in which it must be imposed under existing laws.”[1] This provision is mandatory on the trial court but not on the Court.  If the Court affirms the conviction of the accused, the death penalty is not ipso facto imposed.  The law requires the Court to hold a second voting on whether to impose the death penalty.

This is the clear import of the first paragraph of Article 47 of the Revised Penal Code:

“Art. 47.  In what cases the death shall not be imposed; Automatic review of the Death Penalty Cases. – The death penalty shall be imposed in all cases in which it must be imposed under existing laws, except when the guilty person is below eighteen (18) years of age at the time of the commission of the crime or is more than seventy years of age or when upon appeal or automatic review of the case by the Supreme Court, the required majority vote is not obtained for the imposition of the death penalty, in which cases the penalty shall be reclusion perpetua.

xxx.”

If reclusion perpetua is imposed, it necessarily means that the majority of the members of the Court voted that the accused is guilty of a heinous crime but less than a majority voted to impose the death penalty.  This can only happen if the Court votes twice.

Thus, the language of the law lends itself to only one interpretation – that in deciding cases where the penalty to be imposed is death, the Court should vote twice.  The first voting is to decide whether the accused is guilty beyond reasonable doubt of the heinous crime charged.  If he is, the Court will then proceed to a second voting to decide whether to impose the death penalty.  If less than a majority of the members of the Court vote to impose the death penalty, the law requires that reclusion perpetua shall be imposed, even if the accused is guilty of a heinous crime for which death is the prescribed penalty.  As the Court stated in People v. Roque,[2] -

“xxx Section 22 of Republic Act No. 7659, amending Article 47 of the Revised Penal Code, recognizes that in death penalty cases the High Tribunal puts to a vote not only the issue of the guilt of an appellant but also the question on the imposition of the death sentence itself.”

This is in accord with the intent of the legislators when they enacted the Death Penalty Law.  The legislators understood that the Death Penalty Law would require the Court to vote separately on the imposition of the death penalty, apart from the voting on the guilt of the accused.  In the Senate, the following exchange during the deliberations on the Death Penalty Law reveals this basic understanding:

“Senator Gonzales.[3] There will be two votings by the Supreme Court – voting on the question of guilt, and second, voting on the penalty of whether or not the death penalty shall be imposed.  Would that be correct, Mr. President?

Senator Tolentino.  I did not get that Mr. President, I am sorry.

Senator Gonzales.  As I have said, when the case is now on appeal or review before the Supreme Court, there will actually be two votings.  The first voting would be on the question of guilt of the offender.  The second will be on the imposition of the death penalty.  My question, Mr. President, is, what requisite vote is necessary for a verdict of guilty?

Senator Tolentino.  In the case of the pronouncement of guilty, I think it is just the same as any other case before the Supreme Court.  But when they come now to the imposition of a penalty, if it is going to be death, then there must be unanimity among the Justices.

Senator Gonzales.  Apparently, that was the practice before, Mr. President.  There were two votings by the Supreme Court, one on the question of guilt, and two, on the imposition of the death penalty.”.[4] (Emphasis supplied)

Under the Death Penalty Law, the imposition of the death penalty is subject to the overriding condition that a majority of the members of the Court must vote to affirm the death penalty.  The absence of such majority vote overrides the death penalty and results in the automatic imposition of reclusion perpetua.  In effect, when a death penalty case is on automatic review before the Court, the law provides a range of penalties imposable on an accused who is guilty if a heinous crime.  The death penalty is imposed if a majority vote is obtained, and reclusion perpetua if such vote is not obtained.

The Constitution provides that the death penalty can only be imposed “for compelling reasons involving heinous crimes.”[5] This is the constitutional standard that must be observed in deciding whether to impose the death penalty. The legislature has defined the heinous crimes that deserve the death penalty. But even if a person is charged and convicted of a heinous crime, the Constitution still requires that there must be “compelling reasons” for imposing the death penalty.  As explained by Senator Raul Roco during the Senate deliberations on the Death Penalty Law:

“REMARKS OF SENATOR ROCO

Senator Roco stated that the Body would vote whether or not death as a penalty will be reincorporated in he scale of penalties provided by the Revised Penal Code.  However, he pointed out that if the Body decides in favor of death penalty, the Body would still have to address two issues: 1) Is the crime for which the death penalty is supposed to be imposed heinous pursuant to the constitutional mandate? 2) And, if so, there a compelling reason to impose the death penalty for it?  The death penalty, he stressed, cannot be imposed simply because the crime is heinous.”[6] (Emphasis supplied)

Senator Roco’s remarks clarified that even if a crime is classified by law as heinous and punished with the death penalty, its commission does not automatically result in the imposition of the death penalty.  Senator Roco’s remarks, however, did not explain who would determine the compelling reasons to impose the death penalty.  It was left to the veteran legislator Senator Arturo Tolentino to explain the respective roles of the legislature and the Court in the imposition of the death penalty.  The legislature would prescribe the statutory standard for determining whether compelling reasons exist, while the Court would apply this statutory standard.  This statutory standard is set forth in the Death Penalty Law as follows:

“x x x grievous, odious and hateful offenses x x x which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society.”[7]

Thus, the Supreme Court is to apply this statutory standard to determine, from the facts and circumstances of each death penalty case under review, whether to impose the death penalty.  This can be readily gleaned from the following discussion during the deliberations of the Death Penalty Law in the Senate:

“Senator Tañada.  With respect to the compelling reasons, Mr. President, does the Gentleman believe that these compelling reasons, which would call for the reimposition of the death penalty, should be separately, distinctly and clearly stated for each crime so that it will be very clear to one and all that not only are these crimes heinous but also one can see the compelling reasons for the reimposition of the death penalty therefor?

Senator Tolentino.  Mr. President, that matter was actually considered by the Committee.  But the decision of the Committee was to avoid stating the compelling reason for each and every offense that is included in the substitute measure.  That is why in the preamble, general statements were made to show these compelling reasons.  And that, we believe, included in the bill, when converted into law, would be sufficient notice as to what were considered compelling reasons by the Congress, in providing the death penalty for these different offenses.  If a matter like this is questioned before the Supreme Court, I would suppose that with the preamble already in general terms, the Supreme Court would feel that it was the sense of congress that this preamble would be applicable to each and every offense described or punishable in the measure.  So we felt that it was not necessary to repeat these compelling reasons for each and every offense.

Senator Tañada.  Mr. President, I am thinking about the constitutional limitations upon the power of Congress to enact criminal legislation, especially the provisions on the Bill of Rights, particularly the one which says that no person shall be held to answer for a criminal offense without due process of law. Can we not say that under this provision, it is required that the compelling reasons be so stated in the bill so that the bill, when it becomes a law, will clearly define the acts and the omissions punished as crimes?

Senator Tolentino.  Mr. President, I believe that in itself, as substantive law, this is sufficient.  The question of whether there is due process will more or less be a matter of procedure in the compliance with the requirements of the Constitution with respect to due process itself which is a separate matter from the substantive law as to the definition and penalty for crimes.

Senator Tañada.  Under the Constitution, Mr. President, it appears that the reimposition of the death penalty is subject to three conditions and these are:

1.  Congress should so provide such reimposition of the death penalty;

2.  There are compelling reasons; and

3.  These involve heinous crimes.

Under this provision of the Constitution, paragraph 1, Section 13, does the distinguished Gentleman not feel that Congress is bound to state clearly the compelling reasons for the reimposition of the death penalty for each crime, as well as the elements that make each of the crimes heinous included in the bill?

Senator Tolentino.  Mr. President, that is a matter of opinion already.  I believe that whether we state the compelling reasons or not, whether we state why a certain offense is heinous, is not very important.  If the question is raised in the Supreme Court, it is not what we say in the bill that will be controlling but what the Supreme Court will feel as a sufficient compelling reason or as to the heinous nature whether the crime is heinous or not.  The accused can certainly raise the matter of constitutionality but it will not go into the matter of due process.  It will go into the very power of Congress to enact a bill imposing the death penalty.  So that would be entirely separate from the matter of due process.”[8] (Emphasis supplied)

Clearly, the legislature has recognized that it is the majority of the Court that should determine, given all the attendant facts and circumstances of each case, whether there are compelling reasons to impose the death penalty.  This is the reason the law requires the Court to hold a second voting - to consider the presence of compelling reasons.  If there are no compelling reasons, then the law automatically imposes the penalty of reclusion perpetua for the heinous crime.

This power to determine whether there are compelling reasons to impose the death penalty is consistent with the Court’s constitutional power to review all criminal cases in which the penalty imposed is reclusion perpetua to death.[9] The existence of compelling reasons can only be determined from all the relevant facts and circumstances of each case under review.  The power to determine whether compelling reasons exist necessarily rests with the Court, making this power judicial by nature.  In contrast, the power to define heinous crimes and provide for their penalty, as well as to prescribe the standard for determining the compelling reasons for imposing the death penalty, is a legislative power.

The constitution requires the Court to set forth clearly and distinctly the facts and the law[10] in deciding whether an accused is innocent or guilty of the heinous crime charged.  There is, however, no requirement that the Court explain why the majority voted or did not vote to impose the death penalty since the law itself allows a range of penalties for the heinous crime. It is sufficient for the Court to state that compelling reasons exist or do not exist in a particular case.  Within the range of penalties prescribed by the legislature, courts have traditionally been given wide discretion in sentencing those convicted of crimes.[11] Under the present Death Penalty Law, the legislature has effectively provided a range of penalties for heinous crimes, from reclusion perpetua to death.  As clearly explained during the deliberations on the Death Penalty Law in the House of Representatives:

“Mr. Garcia (P.).[12] That is precisely why this bill does not make the imposition of the death penalty mandatory.  The penalty imposed for the heinous crimes enumerated in this bill is reclusion perpetua to death.  There is no mandatory imposition of the death penalty.  Under the Revised Penal Code there are certain crimes where the penalty of death is mandatory.  For example, in the crime of rape whether attempted, frustrated or consummated, where the victim is killed, the penalty of death is mandatory.  In kidnapping where the victim is killed, the penalty of death is mandatory.  Now under this bill, it is not mandatory even under the circumstances I have just enumerated.”[13] (Emphasis supplied)

In summary, the Constitution has reposed on the Court the power to review all criminal cases where the death penalty has been imposed.  The Constitution mandates that the death penalty can only be imposed for compelling reasons in offenses classified as heinous crimes by the legislature.  The legislature has required the Court to hold a second voting to determine whether compelling reasons exist to impose the death penalty on a person found guilty of a heinous crime.  For this purpose, the legislature has prescribed the statutory standard for determining these compelling reasons.  If the required majority vote is not obtained because no compelling reasons exists, then the next lower penalty, reclusion perpetua, is ipso facto imposed by law.

In view of the foregoing, I vote to convict appellant Solomon Purazo of the crime of qualified rape.  However, I vote to impose the penalty of reclusion perpetua because no compelling reasons exist to impose the death penalty.



[1] Except when the accused is below 18 or more than 70 years of age.  See Article 47, Revised Penal Code, as amended by Section 22 of R.A. No. 7659.

[2] G.R. Nos. 130659 & 144002, August 14, 2002.

[3] Senator Neptali Gonzales.

[4] Record of the Senate, p. 198, Vol. IV, No. 74 (1993).

[5] Section 19 (1), Article III of the Constitution, provides: “xxx Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. xxx.”

[6] Journal of the Senate, p. 1246, Vol. 2 (1993).

[7] Second Whereas Clause, R.A. No. 7659.

[8] Record of the Senate, pp. 500-501, Vol. IV (1993).

[9] Section 5 (d), Article VIII of the Constitution.

[10] Section 14, Article VIII of the Constitution.

[11] An example is the Indeterminate Sentence Law (Act No. 4103) which gives judges a wide discretion in imposing the minimum penalty anywhere within the range of the next lower penalty.

[12] Representative Pablo Garcia.

[13] Record of the House of Representatives, p. 27, Vol. V (1993).