By Fr. Joaquin G. Bernas, S.J.
Last updated 01:03am (Mla time) 07/02/2007
MANILA, Philippines -- Once again there is talk of a possible amnesty proclamation. I am all for efforts at peace and reconciliation. And if amnesty sincerely offered as a gift and not as a trap for the unwary will work, by all means, let's have it. Unfortunately, however, aside from the lingering distrust under which the present administration is still held, there are difficulties in the amnesty process which neither the President nor Congress can solve. They are constitutional and judicially made difficulties. I am hopeful that the new defense secretary, who to my knowledge has no corrupting links with the military, and the highly human-rights-conscious Chief Justice, will help toward making amnesty work.
When amnesty was first brought to the Philippines by American jurisprudence, it was not seen as distinct from pardon but merely an aspect of the pardoning power. The distinction between amnesty and pardon was merely philological and not legal. Hence, amnesty could be granted when pardon could be granted, that is, at the discretion of the President. (Recall that Richard Nixon, after resigning from the US presidency, was immediately pardoned by Gerald Ford.) It was only later that we adopted the doctrine that pardon can be granted only after final conviction.
Now the juridical distinction between pardon and amnesty is clear. 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 its treatment of amnesty, Villa v. Allen made this additional observation: "Where the pardoning power is vested in the legislature and 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nature of a public law, thus having the same effect on the case as if the general law punishing the offense had been repealed or annulled."
The present jurisprudence on amnesty does not go to the extent of saying that amnesty repeals an existing law. But amnesty "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."
Over the years, however, there has developed a doctrine which has made amnesty unattractive to potential beneficiaries. It is the judicially created doctrine that in order to avail himself of the benefits of amnesty, a person must admit guilt. How did this doctrine come about and can it be changed without constitutional amendment?
The earlier doctrine on the subject was that a plea of guilty was not needed for availing of amnesty. As the Court put it: "There is no necessity for an accused to admit his responsibility for the commission of a criminal act before a court or Amnesty Commission may investigate and extend or not to him the benefits of amnesty. The fact that he pleads not guilty or that he has not committed the act with which he is charged, does not necessarily prove that he is not guilty thereof. Notwithstanding his denial, the evidence for the prosecution or complainant may show the contrary, as it is generally the case in criminal proceedings, and what should in such a case be determined is whether or not the offense committed is of political character. The plea of not having committed the offense made by an accused simply means that he cannot be convicted of the offense charged because he is not guilty thereof, and, even if the evidence would show that he is, because he has committed it in furtherance of the resistance to the enemy or against persons aiding in the war efforts of the enemy, and not for purely political motives."
Later, however, a dissenting opinion argued thus: "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."
This dissenting opinion became doctrine in 1963.
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.
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