Wednesday, July 4, 2007

Should Trillanes and Magdalo Consider "Amnesty"?

Does applying for and accepting amnesty amount to an "admission of guilt."?

Joaquin Bernas, SJ, wants the Supreme Court to revise the present doctrine of the Philippines on AMNESTY as stated by Justice Pedro Tuason in a famous dissent that later became the rule:
JUSTICE TUASON: "The writer of this decision maintained in previous decisions, contrary to the view of the majority of the Court, that it is rank inconsistency for one to justify an act, or seek forgiveness for an act, which according to him, he has not committed; that amnesty presupposes the commission of a crime and that when an accused says he has not committed a crime he cannot have any use for amnesty; that where an amnesty proclamation imposes certain conditions, as in this case, it is incumbent upon the accused to prove the existence of such conditions; that a petition for amnesty is in the nature of a plea of confession and avoidance, under which principle the pleader has to confess the allegations against him before he can be allowed to set out matters which, if true, would defeat the action."
Indeed, Father Bernas is urges a PRODIGAL SON approach:
BERNAS: "I believe that this doctrine should be changed especially now in the context of fabricated charges of rebellion or sedition. When a person signifies his intention to avail of amnesty, he should be seen as welcoming either relief from punishment for guilt, if truly guilty, or, if innocent, relief from the trouble of having to prove innocence."
EVEN IF we were to adopt such an attitude, it would not amount to a revision in the doctrine or a reduction of the legal, moral and logical requirements that Justice Tuason defines as applying to the beneficiary of amnesty. I think that the "change" that Father Bernas suggests is only a change in the attitude of the granting power (the President plus Congress) and society at large.

I don't see any way around the requirement mentioned by Justice Tuason that the potential beneficiary of amnesty must petition for amnesty by affirming that the CONDITIONS mentioned in the amnesty proclamation apply to him or her. In other words, an AMNESTY cannot be just a MASS PARDON of person or persons unknown and unnamed, nor a blanket forgiveness of all crimes not admitted. Potential beneficiaries must apply for amnesty, (unlike potential beneficiaries of pardon), and identify themselves as falling into the class of persons qualified for amnesty.

PARDON and AMNESTY are therefore quite distinct from one another:

(1) The President may grant pardon to a person after conviction with finality for a crime, but may proclaim an amnesty only with the concurrence of a majority of Congress.

(2) A PARDON can be rejected by a convict as a means of refusing to admit guilt or accepting the judgment of conviction. However, such a refusal cannot stop the grant of pardon from negating the penalties of conviction, such as imprisonment or execution. In a sense, the object of pardon does not have to do anything at all to benefit from it; moreover, there is really nothing such a person can do to prevent the pardon from taking effect, other than a symbolic act of rejecting it, that would not lessen its binding effects on the Government.

(3) An AMNESTY proclaimed by President and Congress, unlike a PARDON, does not name the person or persons who might benefit from it. Instead an amnesty enumerates CONDITIONS under which a person would qualify for the benefits of amnesty. As Bernas correctly points out, amnesty is intended as "an instrument for peace and reconciliation" aimed at attracting classes of political offenders (such as insurgents, rebels and revolutionaries) back into the folds of society and the Law. But Bernas also admits that before a person can benefit from an amnesty, he "signifies his intention to avail of amnesty."

Since an amnesty generally covers a very large class of possible crimes and conditions, applicable to potentially hundreds if not thousands of persons, the issue of whether availing of amnesty amounts to admission of guilt is less precise than in the case of pardon, which generally involves only a single person and a definite crime already adjudicated.

I agree that applying for and benefitting from an offer of amnesty does not establish the JUDICIAL GUILT of applicants for amnesty in any particular crime, but I think it is an admission that the CONDITIONS mentioned in the amnesty proclamation apply to them.

I think these considerations will be important in the context of the Human Security Act of 2007 (Anti-Terrorism Act).

A great current example of pardon is that of the convicted child rapist Rep. Romeo Jalosjos granted to him by President Gloria Macapagal Arroyo. (Let's remember this: Gloria Macapagal Arroyo's biggest act of executive clemency was for the benefit of a Dirty Old Man child rapist.)

The case of Senator Antonio Trillanes and the Magdalo group of AFP officers charged for their various roles in the Oakwood Mutiny, represents an interesting possibility for amnesty.

Would they be "admitting guilt" in such a case? I think it really depends on "CONDITIONS" written into their Amnesty Proclamation!

I think that Father Bernas is right that AMNESTY is essentially "an instrument of peace and reconciliation."

But rather than as a means for them to avoid having to prove their innocence (which seems to me to be the reverse of the way it should be!), preparing an "honorable" amnestry proclamation for the Oakwood Whistleblowers, it would be a means for Society to avoid the continuing embarrassment of trying to prove them legally guilty when they have already won a moral victory from the jury of the electorate. The Magdalo seem to have won the long-standing sympathy of the Public especially after they were proven right about the existence of graft and corruption among the Top Brass in the scandalous case of the comptroller of the AFP caught with his hand in the cookie jar.


MLQ3 said...

two cases of interest:


though revisiting the amnesty for japanese collaborators would be best.

DJB Rizalist said...

World War II was a long time ago. Some hedged their bets. Some did their duty. Sixty millions died. We are the beneficiaries of that amnesty.