UP Law Teachers weigh in on Proclamation No. 572

Lessons in the Law

UP Law Teachers weigh in on Proclamation No. 572 revoking the amnesty granted to Senator Trillanes in 2011,  for his part in the Oakwood Mutiny during the Macapagal-Arroyo governance (2001-2010). Professors Jay Batongbacal, Antonio La Viña, and Susan Villanueva posted the following legal commentary and arguments slamming the Proclamation.

Professor Jay Batongbacal: “This is wrong. Even assuming, for the sake of argument, that the amnesty granted to Trillanes was void ab initio, he repeatedly ran for public office and has been a sitting Senator for several terms since 2010. Running for public office is an entirely separate matter and is not connected with/dependent on his amnesty. He was deemed automatically resigned upon the first time he filed a certificate of candidacy, and is therefore no longer a military officer. As a civilian, he is beyond military jurisdiction. Further, if I am not mistaken, the AFP likewise dropped all charges against all accused as a result of the grant of amnesty. Those are not automatically reinstated, as if they were put in suspended animation, even if the basis is declared void ab initio. If the AFP wants to run after him for whatever reason, they have to file a case in the civilian court. And even then, they have to contend with the issue of double jeopardy.”

Professor Tony La Viña:  Illegal, unwise, and immoral

In issuing Proclamation No.572, the President revoked the amnesty granted to Senator Trillanes for being void ab initio on the ground that he did not comply with the“minimum requirements to qualify under the amnesty proclamation.” The Proclamation cited a certification from the Armed Forces of the Philippines’Office of the Deputy Chief of Staff for Personnel that there is no available copy of Trillanes’ application for amnesty, and that he refused to admit his guilt. Much like Sereno who was booted out of office after her appointment was declared void ab initio, Trillanes now finds himself under threat of arrest after his amnesty proclamation is being revoked for the same reason.

A patent illegality

The revocation of the Trillanes amnesty is illegal. Without any doubt, Proclamation 572 is a patent illegality, if not outright unconstitutional. It is riddled with legal loopholes to such an extent that it gives the unmistakable impression that it has been dished out for no other reason than to silence a staunch and implacable critic of the President.

Proclamation 75, the amnesty proclamation under which Senator Trillanes applied for in connection with his involvement in the Oakwood mutiny, was processed by the military, approved by then President Aquino and concurred in by Congress. Unlike pardon, amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks and obliterates the offense with which Trillanes was charged that he being released by amnesty stands before the law precisely as though he had committed no offense. There is no question that Trillanes is a grantee of a valid amnesty proclamation, as such his criminal liability was fully extinguished.

Contrary to the President’s statement that Trillanes did not submit an application and a copy of which cannot be found in the Requirement Room, there is ample evidence that this application was in fact submitted. Abigail Valte, a spokesperson of former President Aquino, in fact shared on Twitter a photo of Trillanes’ amnesty application and a video of the document’s filing. Even assuming that a copy of the application could not be found, can the presumption of regularity at least be held in favor of the officials who issued, processed, and had custody of his amnesty application? Same goes with Trillanes’ admission of guilt which prior to the issuance of Proclamation 572 had never been questioned nor put under scrutiny by the previous administrations.

The Proclamation tethers as an ex post facto law for ostensibly inflicting punishment upon Trillanes for an act done prior to its issuance when before the eyes of the law, he has not committed any crime. It is akin to a bill of attainder which singles out the opposition Senator for punishment without trial. Both are proscribed under the Constitution and has no place in a democratic and civilized society.

It should also be noted that an amnesty is not a unilateral act by the President. Granting it required congressional concurrence. This is to make sure the whole government, indeed the country, is bound by that decision. It cannot be undone by the Presidential fiat.

That the President is ordering the immediate arrest of Trillanes, a civilian, is another reason to declare the Proclamation illegal. We all know that a warrant to arrest an individual can only be issued by the courts. The President is but the chief implementor or executive and is not vested under the Constitution with judicial powers. Hence, he cannot simply order the arrest of an individual whimsically, without a judicial fiat.

The courts on the other hand cannot issue an arrest warrant for cases that have already been dismissed by virtue of the amnesty.

An unwise policy

The revocation of the Trillanes amnesty is not right for the country long-term. Indeed, policy-wise, the revocation of any amnesty is disastrous for a country riven by social conflicts. Time and again, political amnesties has been resorted to as a means for healing social and national strife.

In the Philippine American war, as the hostilities wound down, amnesty was resorted to so that everyone would have an option to come down from the hills. After World War II, even as it was controversial, amnesty was offered even to collaborators with the Japanese so the country could move on. In the 1960s and 1970s, and even during the martial law era, amnesties were resorted to bring the Huks, Moro rebels, and other groups back to the fold of the law. More recently, members of the Moro National Liberation Front, the Cordillera People’s Liberation Army, several left-wing groups independent of the Communist Party of the Philippines, and military rebels were granted amnesty. In the future, amnesty has to be granted to the Moro Islamic Liberation Front as well as the cadres and combatants of the Communist Party of the Philippines, New People’s Army, and National Democratic Front of the Philippines if a permanent peace settlement is achieved with the latter groups.

As far as I know, there has never been an instance when amnesty given by one president has been revoked by a subsequent president. If this becomes a rule, future presidents would have lost an important

 

Professor Susan Villanueva: The AFP should not follow an illegal order.

Sen. Trillanes cannot be arrested by a military tribunal. He is no longer a member of the military. x x x

And even during martial law, military courts cannot acquire jurisdiction over Senator Trillanes unless civilian courts are not functioning. See Article VII, section 18, 4th paragraph of our Constitution!

 

Professor Florin Hilbay:

Similarly, when interviewed by media, Professor Florin Hilbay, former Solicitor General, propounded that: (1) only judicial courts may order the arrest of a civilian like Senator Trillanes; (2) an amnesty once granted cannot be revoked; and (3) the President has no constitutional authority to revoke such act.

The Philippine Daily Inquirer of 6 Sept. 2018 carries his fuller legal explanation and may be accessed at http://newsinfo.inquirer.net/