by: Raphel U. Rayco
Crucial to the formation of a new society founded upon compassion after a period of war and strife is the reacceptance of those who might have been guilty of political offenses, conditioned upon their return to obedience and duty within a prescribed time. This is the essence of amnesty.
The first recorded award of clemency was after the victory of the democratic leader Thrasybulus at Piraeus in 403 BC. At the time, “to prevent further infighting, an oath of reconciliation was sworn, promising to refrain from vengeful action provoked by the memory of past wrongdoing.”[1] Such oath was seen as the basis upon which democracy was reconstructed in Athens.
In the Philippines, a nation marred with various political conflicts, the grant of amnesty to certain classes of people has been used to help the country advance despite the turmoil it has gone through. While amnesty does not represent the entire population’s forgiveness, it is still seen by those who have the power to grant it as a way for Philippine society to progress.
At present, under Philippine law and jurisprudence, the requisites for the valid grant of amnesty by the President are: (1) the concurrence of a majority of all the members of Congress;[2] and (2) a previous admission of guilt[3]. Upon showing of fulfillment of the procedural formalities, there shall be total extinguishment of the grantee’s criminal liability, the imposed penalty, and all its effects. The concept of amnesty reaches back to the past and erases the guilt of the person granted with the executive clemency.
As compared to a pardon, another kind of executive clemency, amnesty differs in scope and in application. While pardon is only addressed to ordinary offenses, amnesty is addressed to political offenses. The former is granted to individuals, while the latter is granted to classes of persons. Only the latter requires the concurrence of majority of all members of Congress. Probably the most important distinction is that pardon looks forward and relieves the recipient of the consequences of the offense he might have committed, while amnesty looks backward and puts to oblivion the offense itself. In other words, amnesty deletes the past commission of the offense.[4]
In 2010, the former President Benigno Aquino III granted amnesty to active and former personnel of the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP) and their supporters who have or may have committed crimes punishable under the Revised Penal Code, the Articles of War and other laws in connection with, in relation or incident to the July 27, 2003 Oakwood Mutiny, the February 2006 Marines Stand-Off and the November 29, 2007 Manila Peninsula Incident.
The Proclamation was based on the recognition of the “clamor from certain sectors of society” with the goal of promoting an atmosphere conducive to the attainment of a just, comprehensive and enduring peace in line with the Government’s peace and reconciliation initiatives.[5]
Among those who applied for executive clemency is former Senator and current key opposition leader Antonio Trillanes IV. Upon his alleged application,[6] he was granted amnesty in 2011.
However, seven years into enjoying his freedom based on the grant by former President Aquino III, Trillanes’ amnesty was declared void ab initio by current President Rodrigo Duterte by virtue of Proclamation No. 572, s. 2018.[7] Under the whereas clauses of the more recent proclamation, the basis of the revocation of the grant of amnesty under Department of National Defense (DND) Ad Hoc Committee Resolution No. 2 is Trillanes’ alleged failure to file an Official Amnesty Application Form as per the Certification dated August 30, 2018 issued by Lt. Col. Thea Joan N. Andrade[8], stating that there is no available copy of his application for amnesty in the records.[9] In the same Proclamation, President Duterte ordered the AFP Martial to pursue all criminal and administrative cases filed against former LTSG Trillanes in relation to the Oakwood Mutiny and the Manila Peninsula Incident.
This Proclamation was “nothing but an order of arrest.”[10] In a unilateral act of revocation sans the concurrence present on its grant, the president effectively ordered the arrest of a purported grantee. Through Sec. 2(2) of Proclamation No. 572, President Duterte orders the Armed Forces of the Philippines and the Philippine National Police “to employ all lawful means to apprehend former LTSG Antonio Trillanes so that he can be recommitted to the detention facility where he had been incarcerated for him to stand trial for the crimes he is charged with.”
Acting upon the Proclamation, the Department of Justice filed an omnibus motion to revive both the rebellion case against Trillanes in Makati Regional Trial Court (RTC) Branch 150 and the coup d’état case in Branch 148. Judge Andres Soriano of Makati RTC Branch 148 denied the DOJ’s bid to revive the coup d’etat case while Judge Elmo Alameda of Makati RTC Branch 150 reinstated it.[11]
Judge Alameda issued a warrant for the arrest of Trillanes even after the latter submitted the affidavit of Col. Josefa Berbigal, head of the secretariat of the temporary amnesty committee of the DND that processed the applications of military rebels in 2011. Col. Bergibal attested to Trillanes’ act of filing an application for amnesty in 2011 and admission of guilt in taking part in various attempts to overthrow the government.[12]
Upon appeal by Trillanes, the Court of Appeals (CA) took note of the conflicting rulings of the RTC branches. It noted that “one and the same document – a Certificate of Amnesty – that attests to the grant of amnesty to the petitioner, was read by the RTC of Makati – Branch 148 favorably for the petitioner, but was appreciated unfavorably by the respondent court, RTC of Makati – Branch 150.” The CA also found that Judge Alameda limited his court only to hearing oral arguments and receiving affidavits.[13]
The CA ruled that Judge Alameda disregarded the Doctrine of Immutability of Judgment, the legal precept that a decision that has acquired finality generally becomes immutable and unalterable. Thus, the CA declared Judge Alameda’s reinstating the rebellion case void. He was the same judge who dismissed the rebellion case in 2011 after Trillanes submitted a certificate of amnesty granted by then President Aquino III.
The CA ruled that the RTC Branch 150 committed grave abuse of discretion amounting to excess of jurisdiction, thus ousting it of jurisdiction in reopening Trillanes’ rebellion case. It found that the respondent court failed to take ample time to pause and ponder, whether or not it retained jurisdiction, summarily and cursorily considered the DOJ’s Omnibus Motionupon a matter involving a criminal action that it has long-ago dismissed.[14]
However, the CA upheld the legality of Proclamation No. 572 despite Trillanes’ counsels’ averments of violations of his rights against double jeopardy, ex post facto laws and bill of attainders, and to equal protection of the law. It stated:
“Given the foregoing disquisition, the Court is of the view that an order that dismisses a criminal action based on an amnesty becomes a void judgment when the said amnesty is revoked on the ground that the grantee failed to comply with the conditions of such grant. As discussed above, when a conditional amnesty is subsequently revoked on the ground of breach or noncompliance with the conditions, the grant of amnesty is voided, as if no amnesty was granted to begin with. By necessary implication, any proceeding or action that arose from such revoked amnesty becomes null and void as well. A previous order that dismissed the criminal action is considered to have been issued with grave abuse of discretion because it has no basis in law, as the amnesty has been revoked and voided. Applied to the case, if the revocation of the petitioner’s amnesty is legally and factually sound, the Order of 07 September 2011 can be set aside for being a void judgment and beyond the ambit of the immutability of final judgments and orders doctrine.”[15]
The CA held that the crux of the controversy of whether an amnesty may be revoked arises not from the substantive aspect of the conditional amnesty proclamation, but from its procedural aspect. The Court made reference to the only United Nations member states which have Constitutions that expressly refer to the irrevocability of the legal effects of an amnesty: Peru and Angola. It bears noting that all 191 other member states, including the Philippines, do not have a similar provision.
In sum, the CA upheld Proclamation No. 572 ruling that a conditional amnesty may be revoked on the limited ground that the attached conditions have not been met. It noted that a revoked amnesty can render void an order or judgment that dismissed a criminal action because of the amnesty, but the process entails a proper judicial inquiry which either party to the controversy may initiate viathe proper legal tools and remedies with the proper court clothed with jurisdiction. The court inquiry cannot be merely summary and cursory, but one that shall give the parties ample opportunity to be heard on their respective evidence.
After the CA Decision, the Department of Justice Secretary Menardo Guevarra said the Office of the Solicitor General, as counsel for the government, will determine the next legal remedy.[16] If elevated to the Supreme Court, it would then face the challenge of answering the questions surrounding this case.
In any case, the Court must consider the applicability of the principle of presumption of regularity in the performance of official duty. The DND, an administrative body, was engaged in the performance of its official duty in granting Trillanes and the other members of the specified class amnesty under DND Ad Hoc Committee Resolution No. 2. The Supreme Court has ruled in Yap vs. Lagtapon[17]that “[t]he presumption of regularity in the performance of official duties is an aid to the effective and unhampered administration of government functions. Without such benefit, every official action could be negated with minimal effort from litigants, irrespective of merit or sufficiency of evidence to support such challenge.” In the same case, the Court under the ponencia of Justice Caguioa held that nothing short of clear and convincing evidence to the contrary could overthrow such presumption.
In one of the earliest cases[18] regarding amnesty in the Philippines, the Supreme Court held that the right to the benefits of amnesty, once established by the evidence presented either by the complainant or prosecution, or by the defense, cannot be waived, because it is of public interest that a person who is regarded by the Amnesty Proclamation which has the force of a law, not only as innocent, but one who stands in the eyes of the law as if he had never committed any punishable offense.
Applying these two cases to the present issue, the heavy burden should have always been on the Office of the President, the one which issued the proclamation, to prove that Trillanes did indeed fail to pass the requirements for his amnesty application. The citing of a lone affidavit in the whereas clauses of Proclamation No. 572 is not within the required quantum of “clear and convincing evidence” which could possibly overthrow the presumption of regularity in the performance of duty by the DND in 2011.
By protecting the sanctity of an amnesty grant presumed validly received, the Supreme Court would in effect be recognizing the relevance of reaccepting classes of people who may have been guilty of political offenses for the purpose of forming a compassionate, yet resolutely progressive Philippine society.
[1] Christopher Joyce, The Athenian Amnesty and Scrutiny of 403, (Dec. 2008), https://www.jstor.org/stable/27564181?seq=1 (last accessed May 13, 2021).
[2] CONST., Article VII, Sec. 19
[3] Gaudencio Vera, et al vs. People of the Philippines; G.R. No. L-18184, January 31, 1963
[4] Reyes, Luis B. The Revised Penal Code: Criminal Law Book One, 638 (2017)
[5] Office of the President of the Philippines, Proclamation No. 50, s. 2010, Official Gazette, October 12, 2010
[6] Elemia, Camille. ‘Ex-DND panel chair, official tell courts: Trillanes applied for amnesty in 2011.’ 2018, Sept. 24. Retrieved from https://www.rappler.com/nation/honorio-azcueta-josefa-berbigal-tell-court-trillanes-applied-for-amnesty-2011 (Last accessed May 13, 2021)
[7] Office of the President of the Philippines, Proclamation No. 572, s. 2018, Official Gazette, August 21, 2018
[8] Chief, Discipline, Law and Order Division of the Office of the Deputy Chief of Staff for Personnel, J1
[9] Id.
[10] Billones, Trishia. ‘‘Duterte nullification of Trillanes amnesty ‘nothing but an arrest order’ – lawyer’ 2018, Sept. 17. Retrieved from https://news.abs-cbn.com/news/09/17/18/duterte-nullification-of-trillanes-amnesty-nothing-but-an-arrest-order-lawyer (Last accessed May 13, 2021)
[11] Navallo, Mike. ‘Court of Appeals junks revived rebellion case vs Trillanes’ 2021, March 2. Retrieved from https://news.abs-cbn.com/news/03/02/21/court-of-appeals-junks-revived-rebellion-case-vs-trillanes (Last accessed May 13, 2021)
[12] Reysio-Cruz, Matthew and Salaverria, Leila. ‘Makati judge revives rebellion case vs Trillanes’2018, September 26. Retrieved from https://newsinfo.inquirer.net/1036352/makati-judge-revives-rebellion-case-vs-trillanes (Last accessed May 13, 2021)
[13] Trillanes IV vs. Hon. Alameda, CA-G.R. SP No. 159811; March 1, 2021
[14] Id.
[15] Id.
[16] Pulta, Benjamin. ‘DOJ leaves it up to OSG to appeal Trillanes’ case’ 2021, March 2. Retrieved from https://www.pna.gov.ph/articles/1132303 (Last accessed May 13, 2021)
[17] Yap vs. Lagtapon, G.R. No. 196347; January 23, 2017
[18] Barrioquinto v. Fernandez, G.R. No. L-1278, January 21, 1949
