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Amnesty

By Fr. Joaquin G. Bernas, S.J.


Philippine Daily Inquirer
First Posted 05:16:00 11/08/2010
Filed Under: Crime and Law and Justice

NOVEMBER IS traditionally the month in which we remember our beloved dead. We


naturally remember our beloved dead with a tinge of sadness but also with hope
because we believe in the resurrection of the dead, the springtime of life. In the northern
hemisphere autumn comes in November when the flowers and leaves begin to drop and
the grass grows dry. Autumn augurs death. But there is also the expectation of
springtime when life will burst again in the fields.
I thought, therefore, that this is also a good time to talk about amnesty through which
the Constitution allows the President to remember in a special way those whom we
might call the living dead. Amnesty gives new life.
The Constitution has armed the President with the power of executive clemency. The
power granted is a tacit admission that human institutions are imperfect and that there
are infirmities in the administration of justice. The power therefore exists as an
instrument for correcting these infirmities and for mitigating whatever harshness might
be generated by a too strict application of the law. And in a flawed juridical system
where decisions are long in coming and leave detainees languishing in prison, amnesty
can shorten the deprivation of liberty. Besides, amnesty can also be used as a
bargaining chip in efforts to unify various political forces.
Clemency is not a function of the judiciary; it is an executive function. Thus it is that
Article 5 of the Revised Penal Code provides that whenever a strict application of the
provisions of the law will result in undue harshness to the offender, the duty of the judge
is to impose the proper penalty, however harsh it may be, but he is enjoined to
recommend to the President the exercise of executive clemency.
The two principal clemency instruments are pardon and amnesty. There are important
differences between the two. First, pardon can be granted only after final conviction. For
this reason the Oakwood mutineers and others cannot be given pardon. Amnesty,
however, may be granted before conviction or even before charges are filed. Second,
pardon may be given for any kind of offense, whereas amnesty is generally granted for
political offenses. Third, absolute pardon is effective even if not accepted and
conditional pardon needs acceptance (because the condition of the pardon offered
might be more onerous than the penalty itself.) On the other hand, amnesty not only
needs acceptance but also, according to current jurisprudence, the person accepting
amnesty must admit guilt. Fourth, pardon is discretionary with the President whereas
amnesty needs the concurrence of Congress. Fifth, pardon is usually given to
individuals whereas amnesty is given to a class of offenders. Finally, pardon simply

removes the penalty, whereas amnesty, like baptism in relation to original sin, erases
the offense itself. Thus, it can be granted even after conviction.
This last distinction, however, is not very precise. Jurisprudence also says A pardon
reaches both the punishment prescribed for the offense and the guilt of the offender;
and when the pardon is full, it releases the punishment and blots out of existence the
guilt, so that in the eye of the law the offender is as innocent as if he had never
committed the offense . . . it makes him, as it were, a new man, and gives him a new
credit and capacity.?
Early jurisprudence on pardon was received from US Supreme Court Chief Justice John
Marshall who said: ?A pardon is an act of grace, proceeding from the power entrusted
with the execution of the laws, which exempts the individual on whom it is bestowed,
from the punishment the law inflicts for a crime he has committed. It is the private,
though official act of the executive magistrate, delivered to the individual for whose
benefit it is intended, and not communicated officially to the Court .... A pardon is a
deed, to the validity of which delivery is essential, and delivery is not complete without
acceptance. It may then be rejected by the person to whom it is tendered; and if it be
rejected, we have discovered no power in a court to force it on him. Philippine
jurisprudence has modified this. Here acceptance is required only in conditional pardon.
Amnesty also comes from American jurisprudence. Under American jurisprudence, the
power to grant amnesty is considered merely an aspect of the pardoning power. Pardon
includes amnesty, was the American Courts ruling. Later, the Court added in another
ruling that the distinction between pardon and amnesty was one rather of philological
interest than of legal importance. As already pointed out, however, in Philippine law the
distinction between pardon and amnesty is of legal importance because of the existing
constitutional text. Under the Constitution, amnesty may be given only with the
concurrence of a majority of all the members of Congress and pardon may be given
only after final conviction.
When President Aquino made a proclamation extending amnesty to detained mutineers,
it was said by some that the President was intruding into the jurisdiction of the court
trying the mutineers. I do not see it that way. President and court have separate powers.
The amnesty declaration does not prevent the court from proceeding to final judgment
nor would conviction by the court prevent the effect of amnesty. At any rate, the judge in
the mutiny cases has decided to defer his decision until the amnesty issue is settled.