The law ordains that [death convicts] should pay with their
lives in retributionof their offense. In these days of rampant violence
of criminality, this decision [imposing the death penalty] is
calculated to have the most salutary effect upon the elements that
threatento set the law at naught andbreak the social order; it should
serve as a reminder to those who are criminally minded that crime
does not pay.45
ButIslam is notinelastic in its application of death penalty. It does not delight
in its imposition. The acceptance of blood money or financial settlement and
remissionof penalty on thepart of the victimsare featuresof Islamic penology.4° But
these rules do not apply to the crimes of adultery, lesbianism, homosexuality,
sodomy, unnatural sex andbestiality. This principle findsits rationale in the realm of
religion which regards manasthe highest form of creation by God, the Absolute, who
created him in His own image. Death penalty for an incorrigible male for apostasy is
also beyondintervention in Islam.47
GENERAL WELFARE MEASURE
Death penalty is a police power measure to protect society from theperil of
criminality or to create and maintain order whichassuresits citizens their security or
personal safety within and outside their houses. Our decisional law justifies its
exercise for the general welfare. Thus:
The conceptofpolice power wassetforth in negative terms by
Justice Malcolm in pre-commonwealth decision as that
inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare of
society? and to promote health, peace, morals, education and
good orderof the people.49
Certainly, the death penalty law serves the general welfare or the welfare of
the great majority.
CONDITIONS A PRIORI
It is axiomatic that the general welfare principle in our constitutional law
operates as benchmarkin the exerciseof the powersof sovereignty. But this guidance
does not afford the governmentthelicense to exercise unrestrained powerto rein in
individual liberty andcurtails one’s rights to life and dignity.
As an instrumentof the people, by the people and for the people, the Stateis
lodged with the duty to establish a social order that affords the people every
opportunity to develop their potentials and becomeanasset rather thanliability to
society. In brief, it has to emplace and define policies and establish corresponding
structures that would bring abouta stateof felicity amongits people. In Islam, these
policies are referred to as “primary laws” which are laid down for reformation and
* People vs. Ubaldo, 24 SCRA 735 [1968]
“© Qur'an 2:178, 179; MuhammadIqbalSiddiqi, ibid., p.29
*’ MuhammadIqbalSiddiqi, ibid., pp.110-111. Insanity is a defensein Islamic penology
*8 Enriquevs. Fernando,“The Constitution ofthe Philippines.” 1974: QuezonCity, p. 515
#113 U.S. 27 (1885), ibid.
21