IT is clear in Article VII, Section 19 of the 1987 Constitution that the President of the Philippines, “except in cases of impeachment or as otherwise provided in the Constitution, may grant reprieves, commutations, pardons, remit fines and forfeitures, after conviction by final judgment. He shall also has the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.”
It is likewise clear that there is difference between pardon and amnesty.
The President may grant amnesty with the concurrence of the majority of all the members of Congress. This distinguishes amnesty from pardon because the latter does not need congressional approval. The other distinctions between amnesty and pardon are:
(1) Amnesty covers political offenses, while pardon refers to any infraction of peace and order in the State;
(2) Amnesty is generally addressed to a group or a community, while pardon is granted to an individual or a limited number of individuals;
(3) Amnesty is a public act of which the court may take judicial notice, while pardon is a private act which must be pleaded and proved by the person pardoned because the courts take no notice thereof;
(4) Amnesty is granted either before or after conviction while pardon is given only after conviction;
(5) Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted. It abolishes or forgives the punishment, and for that reason it does not work the restoration of the rights to hold public office, or the right of suffrage unless such rights be expressly restored by the terms of the pardon, and in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence (Article 36, Revised Penal Code).
(6) On the other hand, amnesty looks backward and abolishes and puts into oblivion the offense itself so much so that the person released by amnesty stands before the law precisely as though he had committed no offense (Barrioquinto v. Fernandez, 82 Phil. 642).
(7) In no case does pardon exempt the culprit from the payment of civil indemnity imposed upon him by the sentence (Article 36, Revised Penal Code). Amnesty, likewise, does not extinguish the civil liability (Article 113, Revised Penal Code).
The power to extend executive clemency in favor of persons convicted of public crimes is unlimited. The exercise of that power lies in the absolute and uncontrolled discretion of the Chief Executive. The grounds upon which it is exercised are not open to judicial inquiry or review (United States v. Guarin, 30 Phil. 85).
Six weeks after former President Joseph Estrada (President Estrada) was convicted by the Sandiganbayan, then-President Gloria Macapagal-Arroyo (President Arroyo) pardoned him, setting aside his conviction and life sentence on charges of plunder. “He is hereby restored to his civil and political rights,” President Arroyo said. President Estrada, then 70, had been under house arrest since he was ousted as President in 2001 and President Arroyo, his then-Vice President, took his place. “Estrada’s age, the fact that he had been in custody for over six years and his commitment not to seek public office weighed in favor of the pardon. However, all illegally amassed wealth seized from him would be retained.” Then Chief Presidential Spokesperson Ignacio Bunye said on television (uk.mobile.reuters.com) that state prosecutors who had helped convict President Estrada were scathing in their criticism of the presidential pardon and the fact that, notwithstanding Estrada’s commitment, he again ran for public office. Yet, the pardon and the violation of the commitment not to run were not elevated to the Supreme Court for judicial review. Pardon is construed most strictly against the State (Tolentino v. Catoy, 82 Phil. 301). The pivotal question now is whether amnesty may be subject to judicial review.
Our Official Gazette (OG) lists down a number of proclamations granting amnesty, none of which were subjected to judicial inquiry:
(1) Proclamation 8 dated September 7, 1946, granting amnesty to those who committed acts penalized by the Revised Penal Code in furtherance of the Resistance Movement against the Japanese (Barrioquinto v. Fernandez, 82 Phil. 642).
(2) Proclamation 76 dated June 21, 1948 (44 OG 1795), granting amnesty to leaders and members of the Hukbalahaps and National Peasant’s Association who committed rebellion, sedition, illegal association, assault upon, resistance and disobedience to persons in authority, and illegal possession of firearms.
(3) Proclamation 51 dated January 28, 1948 (44 OG 408), granting full and complete amnesty to all persons accused of any offense against the National Security for acts allegedly committed of giving aid and comfort to the Japanese during the last war.
(4) Proclamation 164 dated January 4, 1950 (46 OG 6), granting amnesty to the leaders and members of the Batangas uprising, which commenced on November 19, 1949.
(5) On July 4, the US President issued an Amnesty Proclamation for those who committed offenses during the Filipino American War, such as political crimes (Act 292) and those originating from internal political feuds and dissensions (PD 571, OG 9844).
(6) Presidential Decree 124 dated February 2, 1973, “Declaration Of An Amnesty In Favor Of All Persons Who Violated Certain Provisions Of The Anti-Subversion Act.”
(7) Presidential Decree 1082 dated February 2, 1977, “Proclaiming Amnesty In Certain Areas Of The Philippines” in favor of all the leaders, members, supporters and sympathizers of the Moro National Liberation Front and the Bangsamoro Army, and other anti-government groups until similar motivations and aims in furtherance of their resistance to the duly constituted authorities of the Republic of the Philippines.
(8) Presidential Decree 1429 dated June 10, 1978, “Revising Presidential Decree 124 as Amended by Presidential Decree 1182” granting amnesty for violation of RA 1700 as amended by Presidential Decree No. 885 for crimes against public order.
(9) Proclamation 75 “Granting Amnesty To Active And Former Personnel Of The Armed Forces Of The Philippines, Philippine National Police And Their Supporters Who May Have Committed Crimes Punishable Under The Revised Penal Code, The Articles Of War And Other Laws In Connection With The Oakwood Mutiny, The Marines Stand-Off And The Manila Peninsula Incident.”
A common theme of all the above Amnesty Proclamations and Decrees is the desire to “achieve national unity and reconciliation,” “hasten the restoration of tranquility and stability of the nation,” “accelerate the restoration of peace and order throughout the country,” “provide the opportunity to return to the folds of the law and become loyal, law-abiding and useful citizens of the Republic,” “avoid further bloodshed, loss of live,” “waste of time, effort and other valuable resources in the prosecution of offenders,” and “promote an atmosphere conducive to the attainment of a just, comprehensive and enduring peace in line with the government’s peace and reconciliation initiatives.”
Given the foregoing, the objectives appear to have been forgotten by the “creators” of Proclamation 572 dated August 31, 2018: “Revocation Of The Department Of National Defense Committee Resolution 2 [#1] dated January 31, 2011, Insofar As It Granted Amnesty To LTSG Antonio Trillanes IV.”
Far from bringing the country closer to achieving national unity, reconciliation, stability and peace, Proclamation 572 may have unwittingly reopened a closed chapter in history and resurrected a dead horse.
Paradoxically, “amnesty” is derived from the Greek word “amnestiva” meaning “forgetfulness, passing over.” It has evolved into the English word “amnesia.” Which is what I think the authors of Proclamation 572 are suffering from!