Saturday, November 6, 2010


November is traditionally the month in which we remember our beloved dead. We naturally remember our beloved dead with a tinge of sadness but also with hope because we believe in the resurrection of the dead, the springtime of life. In the northern hemisphere autumn comes in November when the flowers and leaves begin to drop and the grass grows dry. Autumn augurs death. But there is also the expectation of springtime when life will burst again in the fields.

I thought, therefore, that this is also a good time to talk about amnesty through which the Constitution allows the President to remember in a special way those whom we might call the “living dead.” Amnesty gives new life.

The Constitution has armed the President with the power of executive clemency. The power granted is a tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice. The power therefore exists as an instrument for correcting these infirmities and for mitigating whatever harshness might be generated by a too strict application of the law. And in a flawed juridical system where decisions are long in coming and leave detainees languishing in prison, amnesty can shorten the deprivation of liberty. Besides, amnesty can also be used as a bargaining chip in efforts to unify various political forces.

Clemency is not a function of the judiciary; it is an executive function. Thus it is that Article 5 of the Revised Penal Code provides that whenever a strict application of the provisions of the law will result in undue harshness to the offender, the duty of the judge is to impose the proper penalty, however harsh it may be, but he is enjoined to recommend to the President the exercise of executive clemency.

The two principal clemency instruments are pardon and amnesty. There are important differences between the two. First, pardon can be granted only after final conviction. For this reason the Oakwood mutineers and others cannot be given pardon. Amnesty, however, may be granted before conviction or even before charges are filed. Second, pardon may be given for any kind of offense, whereas amnesty is generally granted for political offenses. Third, absolute pardon is effective even if not accepted and conditional pardon needs acceptance (because the condition of the pardon offered might be more onerous than the penalty itself.) On the other hand amnesty not only needs acceptance but also, according to current jurisprudence, the person accepting amnesty must admit guilt. Fourth, pardon is discretionary with the President whereas amnesty needs the concurrence of Congress. Fifth, pardon is usually given to individuals whereas amnesty is given to a class of offenders. Finally, pardon simply removes the penalty, whereas amnesty, like Baptism in relation to original sin, erases the offense itself. Thus, it can be granted even after conviction.

This last distinction, however, is not very precise. Jurisprudence also says "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense . . . it makes him, as it were, a new man, and gives him a new credit and capacity."

Early jurisprudence on pardon was received from Chief Justice Marshall who said: “A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court . . . . A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.” Philippine jurisprudence has modified this. Here acceptance is required only in conditional pardon.

Amnesty also comes from American jurisprudence. Under American jurisprudence, the power to grant amnesty is considered merely an aspect of the pardoning power. "Pardon includes amnesty," was the American Court's ruling. Later, the Court added in another that the distinction between pardon and amnesty was "one rather of philological interest than of legal importance." As already pointed out, however, in Philippine law the distinction between pardon and amnesty is of legal importance because of the existing constitutional text. Under the Constitution, amnesty may be given only with the concurrence of a majority of all the members of Congress and pardon may be given only after final conviction.

When President Aquino made a proclamation extending amnesty to detained mutineers, it was said by some that the President was intruding into the jurisdiction of the court trying the mutineers. I do not see it that way. President and court have separate powers. The amnesty declaration does not prevent the court from proceeding to final judgment nor would conviction by the court prevent the effect of amnesty. At any rate, the judge in the mutiny cases has decided to defer has decision until the amnesty issue is settled.

8 November 2010

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