IN A media interview he gave in early March, the President’s chief legal counsel Salvador Panelo said: “Anything that is not the law can be a precedent. It is always in the context of the law. So, kung nagbigay siya ng amnesty na mali, eh hindi valid yon. (So, if he gave an amnesty that is wrong, then it is invalid.)”
Panelo was of course referring to the amnesty granted by former President Aquino to the group of detained putschists led by Antonio Trillanes IV.
Since nothing has been heard from Panelo about the subject again, I ventured to research that particular grant of amnesty.
What is amnesty?
I read somewhere that amnesty sounds like “amnesia”. Well, in a specific sense amnesty means “forgetting”.
In its technical and legal sense, amnesty is an act of forgiveness for past offenses, especially political offenses against a government, granted to a class of persons as a whole.
The Supreme Court held in various cases 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”.
“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,” the high court said.
The Official Gazette records that Aquino signed two proclamations relative to the granting of amnesty to active and former personnel of the Armed Forces of the Philippines and their supporters in connection with the July 27, 2003 Oakwood mutiny, the February 2006 Marines stand-off and the November 29, 2007Manila Peninsula Hotel incident.
Proclamation 50 was signed by Aquino on October 11, 2010, declaring and proclaiming the grant of amnesty to active and former personnel of the AFP and their supporters who may have committed punishable acts in connection with these three incidents, “[extinguishing]any criminal liability” for such acts committed, “without prejudice to the grantee’s civil liability for injuries or damages caused to private persons.”
Proclamation 50 said the grant of amnesty was to take effect ”immediately upon the signing thereof,” which is what makes it procedurally flawed. Any presidential grant of amnesty needs the concurrence of the Congress.
However, Proclamation 50 was never concurred in by the Philippine Congress.
Sensing the infirmity of Proclamation 50, Aquino recalled it and issued Proclamation 75 on November 24, 2010, the substance of which was essentially the same as that of Proclamation50—except for the explicit mention of its taking effect “upon concurrence of the majority of all the Members of the Congress”.
Likewise, in its period of application, Proclamation 75 modified the publication phrase into the following: “within a period of ninety (90) days following the date of the publication of this proclamation in two (2) newspapers of general circulation as concurred in by a majority of all members in Congress.”
Thereafter, House Concurrent Resolution No. 8, authored by then Speaker Feliciano Belmonte Jr., was passed and resolved to ratify Proclamation 75. It was concurred in by 213 congressmen, with seven against, and two abstentions.
Constitutional provisions on the grant of amnesty
The proviso relative to the President’s power to grant amnesty is specified in Section 19 of Article VII of the 1987 Constitution. It provides that the President “shall have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.”
It is explicit that the amnesty must be with the concurrence of a majority of all the “Members of the Congress.”
Who are the members of Congress being referred to? Are these the congressmen (representatives) or the senators? Well, the answer is in the Constitution itself.
Section 1 of Article VI of the Constitution mandates that, “The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives…” Hence, Congress is made up of two chambers, the Senate (usually referred to as the upper chamber), and the House of Representatives (a.k.a. lower chamber).
Going back to Section 19 of Article VII, the term “Members of the Congress” must then pertain to the total members of both the Senate and the House of Representatives.
Note that the Constitution is always explicit as to which chamber in particular is necessary to concur with the President. For example, in Section 21 of Article VII, it says, “No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.” As you can see, it is only the members of the Senate, and not the members of Congress, who should concur to make an international treaty or agreement valid.
Was Proclamation 75 properly concurred then?
I tried searching the government records online for the full text of the concurrent resolutions of the Senate and the House pertinent to the grant of amnesty to Trillanes et. al. but found none.
However, there were newspaper reports and media accounts attesting that the Senate, with 14 senators voting for it, concurred with Proclamation 75 on December 7, 2010.
So, there you are. Proclamation 50 is patently and clearly defective. It was replaced by Proclamation 75, which was concurred in by the Senate and then by the House of Representatives.
Is it valid procedurally? My insight tells me that it was. Is it valid in substance, meaning in its context? Panelo should be able to answer that.
Well, amnesty is indeed just like amnesia.