Sunday, September 9, 2007

Amnesty is such a lonely word

GMA issued Proclamation No. 1377 on 6 September 2007 granting amnesty to members of the Community Party of the Philippines-New People’s Army-National Democratic Front (CPP-NPA-NDF) and other communist rebel groups in the country.

The proclamation shall come into force upon concurrence by a majority of all the members of Congress. (Sec. 19, Art. VII, 1987 Phil Constitution).

What is amnesty?

It’s an action of a government by which all persons or certain groups of persons who have committed a criminal offense, usually of a political nature that threatens the sovereignty of the government, are granted immunity from prosecution. Amnesty allows the State to "forget" criminal acts, usually before prosecution has occurred.

In our jurisdiction, it is defined as an act of grace concurred in by Congress, usually extended to groups of persons who commit political offenses, which puts into oblivion the offense itself.

What are the crimes covered by amnesty?

Section 2 of the proclamation provides that the amnesty “shall cover the crime of rebellion and all other crimes included therein or incident thereto in pursuit of political belief as defined by jurisprudence, whether punishable under the Revised Penal Code or special laws.”

Crimes against chastity, rape, torture, kidnapping for ransom, use and trafficking of illegal drugs and other crimes for personal ends and violations of international law or convention and protocols, even if alleged to have been committed in pursuit of political beliefs are not covered.

What is the difference between amnesty and pardon?

According to eminent constitutionalist Fr. Bernas, the juridical distinction between pardon and amnesty was clearly drawn.

“Amnesty may be granted before conviction or even before charges are filed, whereas pardon can be granted only after final conviction. Pardon after conviction is now at the discretion of the President, but amnesty may be granted by the President only with the concurrence of a majority of all the members of Congress. Pardon is generally granted to individuals irrespective of the kind of offenses they may have committed; amnesty on the other hand is offered to a group who generally are political offenders. Amnesty therefore is more clearly a peace and reconciliation instrument.”

In U.S. jurisdiction, there is no specific legislative or constitutional mention of amnesty, making its nature somewhat ambiguous. The difference between amnesty and pardon is particularly vexing. In theory, an amnesty is granted before prosecution takes place, and a pardon after. However, even this basic distinction is blurry— Remember President Ford granted a pardon to President Nixon before the latter was charged with any crime. American courts allow the two terms to be used interchangeably.

Must a person admit his guilt of the offense when a person applies for amnesty?

The earlier doctrine was that a plea of guilty was not needed for availing of amnesty. Now, when a person applies for amnesty he must admit his guilt of the offense which is the subject of such amnesty. If his application is denied, he can be convicted based on this admission of guilt. Many believe that this doctrine should be abandoned especially now in the context of fabricated charges of rebellion or sedition. Fr. Bernas opined that 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

May the Congress directly grant amnesty?

Under our Constitution, the President shall have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.
In effect, the President alone cannot grant amnesty for it needs the concurrence by majority of all members of Congress.

It appears there’s a blending of power in the manner of the granting of amnesty, that is, the President proclaims the granting of amnesty and the Congress approves such proclamation. By implication, the Congress cannot issue a proclamation granting amnesty to certain individuals and concur on it at the same time. That runs contrary to the letter of the Constitution.

However, I am of the view that Congress may directly grant amnesty. The power to grant amnesty is vested in the legislature and is exercised by legislative grant. Granting of amnesty for strictly political offenses is in the nature of a public law, thus it has the same effect as the repeal of a law punishing an offense.

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