Walang forever sa amnesty?

Walang forever sa amnesty?

By: Jose Mari BFU Tirol, Ll.M.

(The author is the dean of the University of San Agustin’s College of Law)

The President has the power to grant amnesty with the concurrence of a majority of all the Members of the Congress (Art. VII Sec. 19, Philippine Constitution). Criminal liability is totally extinguished by amnesty (Art. 89[3], Revised Penal Code).

Once granted, can an amnesty be revoked? Once totally extinguished, can criminal liability be revived?

 

The nature and effect of amnesty

“… the criminal liability of the appellee had been completely extinguished by virtue of the amnesty extended him by the Amnesty Commission, Armed Forces of the Philippines … Amnesty is a public act of which the court should take judicial notice …” (People v. Vera, GR No. L-26539 February 28, 19990 https://www.lawphil.net/judjuris/juri1990/feb1990/gr_l_26539_1990.html)

“Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged, that the person released by amnesty stands before the law precisely as though he had committed no offense.

Paragraph 3 of Article 89 of the Revised Penal Code provides that criminal liability is totally extinguished by amnesty, which completely extinguishes the penalty and all its effects.” (People v. Patriarca, GR No. 135457 September 29, 2000  http://sc.judiciary.gov.ph/jurisprudence/2000/sept2000/135457.htm)

 

Proclamation 75, the Amnesty Proclamation

In Proclamation 75, series of 2010 (http://www.officialgazette.gov.ph/2010/11/24/proclamation-no-75-s-2010/), President Aquino granted amnesty to members of the military and police, and their supporters, who were involved in the Oakwood Mutiny, the Marines Stand-Off, and the Manila Peninsula Incident. Proc. 75 states who may avail of the amnesty, where to apply, and the period of application. It also enumerates the effects of amnesty, one of which is that “amnesty pursuant to this proclamation shall extinguish any criminal liability…”

While any person who falls under the persons described in Proc. 75 can apply for amnesty, no particular person is named therein.

Both Houses of Congress, in Concurrent Resolution No. 4, concurred with Proc. 75

(https://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=HCR-8).

The Supreme Court has taken judicial notice of Proc. 75 and the grant of amnesty in favor of the soldiers who figured in the Oakwood standoff, as well as Congress’ concurrence with Proc. 75 (Magdalo v. COMELEC, GR No. 190793 June 19, 2012 http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/190793.htm). The Court underscored that “amnesty by Proclamation of the Chief Executive with the concurrence of Congress, is a public act of which the courts should take judicial notice”, and recognized “the express intention of both the Executive and the Legislative branches, in granting the said amnesty, to promote an atmosphere conducive to attaining peace in line with the government’s peace and reconciliation initiatives.”

 

Proclamation 572, the Amnesty Revocation

In Proclamation 572, series of 2018 President Duterte “declared void ab initio” the amnesty of Sen. Trillanes under Proc. 75, “because he did not comply with the minimum requirements to qualify under the Amnesty Proclamation.” Only Trillanes is mentioned in Proc. 572.

The “Amnesty Proclamation” referred to in Proc. 572 is of course Proc. 75.

Two grounds are stated in Proc. 572:

  • Trillanes “… did not file an Official Amnesty Application Form …”;
  • Trillanes “… never expressed his guilt for the crimes …”

 

Questions

  1. Are the grounds stated in Proc. 572 mentioned in Proc. 75? Are they “minimum requirements to qualify under the Amnesty Proclamation,” Proc. 75?

If they are, and if Trillanes failed to comply with them (a big “if,” because a news report showing Trillanes applying for amnesty and expressing his guilt has surfaced), then it was erroneous for the DND to include him in the list of those granted amnesty. But if any such error exists, it cannot be attributed to him; even Proc. 572 is silent on this matter.

  1. The nature and effect of amnesty was described in People v. Vera and People v. Patriarca. And a judgment of acquittal cannot be recalled even if the same is erroneous (People v. Alejandro, GR No. 22309 January 11, 2018 http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/january2018/223099.pdf). If the DND erred (again, a big “if”) in including Trillanes’ name in the list of those granted amnesty, is this a ground for the cancellation of his amnesty?
  2. Proc. 572 orders the AFP and PNP to apprehend Trillanes “for him to stand trial for the crimes he is charged with”. But “amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged, that the person released by amnesty stands before the law precisely as though he had committed no offense” (People v. Patriarca). And so:

3.a. What is the legal basis for effecting the warrantless arrest (Rule 113, Sec. 5, Rules of Criminal Procedure) of someone:

  • who did not commit, is actually committing, or is attempting to commit an offense?
  • if you have no probable cause based on personal knowledge that the person to be arrested has just committed an offense?
  • who is not an escaped prisoner?

3.b. Under the Constitution, only Judges can issue warrants of arrest. What is the legal basis for a Judge to issue a warrant for the arrest of someone who is not charged with any case?

3.c. What is the legal basis for a person who is not a judge to order the police and other law enforcement agencies to arrest someone, especially one who cannot be the subject of a lawful warrantless arrest or of a warrant of arrest because of the absence of any of the grounds enumerated in 3.a. and 3.b. above?

1 comments

It is my humble that the main question here is whether President Duterte can declare a previous amnesty as void ab initio.

If the President has authority to do so then Senator Trillanes’ recourse is to question the validity of such declaration and present evidence that he has complied with the minimum requirements.

Otherwise, Senator Trillanes’ remedy is to question the President’s authority to declare a previous amnesty as void ab initio.

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