Thinking the unthinkable – self-amnesty instead of auto-golpe

Once upon a time, a President committed an indiscretion.  He was caught unable to explain an 18-minute gap in a White House tape.  He obstructed justice, and then resigned.  He was pardoned by the new President.  That was in 1974 in the good ole US of A. FORDCARTOONstahler

Once upon a time, a President was bedeviled by all sorts of complaints.  She sought to defuse the matter by suggesting a change in the Constitution.  Still, the strident Opposition demanded a confrontation.  Some even suggest she would repeat something that happened in 1972.  The country is the Philippines.

The lessons of history are never really useful.  History has its own destiny, so to speak.  Speculation based on repeat occurrences is the most suspect.  So, the new and unexpected may yet come to pass. Yet, we really don’t know what will cause events as or before they happen.  After the fact, we can find all sorts of explanations, and even believe them.

Can a Philippine President give himself or herself an amnesty?  A pardon?  Can he do a Nixon/Ford dance – the first resigns and the second pardons?

The law may have some say.  The following is a primer on the law on amnesty and pardon.

What historical antecedents may be relevant to the law on pardon and amnesty?

–          The excesses of the French Revolution (referred to in People v Guillermo, 1950).

–          The pardon granted in 1974 by Pres. Ford to former Pres. Nixon with respect to the Watergate incident.  Nixon was not subjected to a criminal prosecution, and one of the grounds cited by Ford in connection with the pardon was his belief that Nixon would not have been afforded the equal protection of the laws because of the extreme passions aroused by the Watergate incident. Nixon responded to the pardon by admitting guilt.

–          The purpose of executive clemency is in part to mitigate “whatever harshness might be generated by a too strict application of the law,” and as “a bargaining chip in the efforts to unify various political forces.”  Bernas, Commentary on the 1987 Constitution, 2003 ed., p. 892.

Can a President grant himself amnesty?

The Constitution does not impose a bar against a self-grant of amnesty.  In a case, it was held that the intent of the 1986 Constitutional Commission was not to impose limits on the power of Executive clemency beyond those explicitly provided for in the Constitution. Llamas v Orbos, 1991.  But there are certain other requisites of amnesty (see below).

Can a President grant amnesty to anyone else?  To a single individual?

Yes and yes.  Again, the Constitution does not pose a bar.  See the answer to the preceding question.

What are the requisites of amnesty other than the act of the Executive?

–          Concurrence of “a majority of all the Members of the Congress.” Art. VII, Sec. 19.

–          Admission of guilt. Vera v. People (1963).

–          The grant of amnesty is given to classes of persons or communities. Barrioquinto v Fernandez, 1949.

How is the concurrence of Congress in an amnesty obtained?

By “a majority vote of all the members of the Congress.” Art. VII, Sec. 19.  The Constitution is silent on whether the two houses would vote separately or jointly.  But in a case, it has been held that where the pardoning power is exercised by legislative grant, and is in the nature of a general amnesty for strictly political offenses, it has been considered in the nature of a public law” (Villa vs. Allen, 1903).  This seems to suggest that the procedure should be the same as that for enacting a public law, i.e. with both houses voting separately.

Is the grant of amnesty controllable by Congress or the Courts?

The Courts may not interfere since it is an act that is totally at the discretion of the Executive.  However, in the case of amnesty, there are certain requisites whose non-fulfillment would bar or avoid an amnesty.  In particular, Congressional concurrence is required for amnesty.

What is the effect of amnesty?  Can it be revoked?

It extinguishes criminal liability.  It cannot be revoked.  This follows from the view that the person released by amnesty stands before the law as though he had committed no offense. See US cases cited in Bernas’ Commentary, p. 897.

What about pardon?

Pardon has the same effect as amnesty in terms of extinguishing criminal liability.  However, there are limitations on the Executive’s pardoning power.  These are:

–          It can be granted only after conviction by final judgment.  Art. VII, Sec. 19.

–          It cannot be granted for conviction in a case of impeachment.  Art. VII, Sec. 19.

–          It cannot be granted if “otherwise provided in [the] Constitution.” Art. VII, Sec. 19.  This includes cases involving violation of election laws, and here, the pardon requires favorable recommendation of COMELEC (Art. IX, C, Sec. 5).

If it is considered politically unwise for a sitting President to grant himself or herself an amnesty, what alternative would accomplish the same end?

Based on the above discussion, a President can resign and be succeeded by the Vice President.  The Vice President could grant the former President an amnesty through one which covers a class of persons, for example, including others who may be complicit in the offenses covered by the amnesty.  A non-controlling but persuasive precedent would be Ford’s pardon of Nixon in 1974.

Conclusions

The Executive can grant amnesty to a class of persons, subject to concurrence of Congress and admission of guilt on the part of those claiming to be covered by the amnesty.

The Executive can pardon an individual, but the latter must have been convicted by final judgment.  The offense involved must not be one determined in a case of impeachment.  If the offense involved is a violation of election laws, the pardon requires a favorable recommendation of COMELEC.

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