17 December 2018

LEGAL MEMORANDUM

Subject: Trillanes Amnesty - Magdalo Group

This legal memorandum is written in light of the recent controversy on the amnesty
awarded to the Magdalo Group, specifically to Trillanes.

Background

On July 27, 2003, Lieutenant Senior Grade Antonio Trillanes IV of the Philippine Navy
and over 300 junior officers from the Armed Forces of the Philippines (AFP) took over
Oakwood Premier in Makati to protest against the corruption of the Arroyo
Administration and in the military. After the surrender of Trillanes and his group, the
Department of Justice (DOJ) filed coup d’etat charges against the 321 mutineers. Later
on, this was amended to consolidated coup d’etat case against 31 men including
Trillanes.

In the May 2007, elections, Trillanes won a Senate seat. But he was later denied by the
court to attend senate sessions and continued to serve from jail.

On November 29, 2007, during a hearing for their coup d’etat case, Trillanes and other
Magdalo soldiers walked out of the court room and proceeded to the Manila Peninsula
Hotel. The Manila Peninsula siege was their attempt to call for the ouster of Arroyo. The
DOJ filed rebellion charges against Trillanes and 35 other men.

On July 2009 and in preparation for the May 2010 elections, Magdalo group files for
accreditation as a political party before the Commission on Elections (COMELEC). Their
application was rejected on the ground that its members and the party had the
propensity to engage in illegal adventure or resort to violence.

On November 24, 2010, then President Benigno Aquino III issued Proclamation No. 75
which grants amnesty to all active and former AFP and Philippine National Police (PNP)
members who were involved in the 2003 Oakwood Mutiny and 2007 Manila Peninsula
siege. This was later on concurred in by Congress.

On January 2011, military officers and personnel, including Trillanes, applied for the
amnesty. Trillanes was granted amnesty and rebellion charges against him were
dismissed. Trillanes vowed to support the Aquino administration after he was freed.

In the May 2013 elections, Trillanes was re-elected as a Senator. The Magdalo party-list
was now allowed to join the elections and won two seats in the House of
Representatives.
In the May 2016 elections, Trillanes ran for Vice-president but had no presidential
tandem. Prior to said elections, Trillanes filed a plunder case against then Mayor
Rodrigo Duterte before the Office of the Ombudsman.

After the election of President Duterte, many attempts were made by Trillanes to
expose the President’s corruption and drug involvement. Some of his attempts included
the filing of a Senate Resolution to probe executions by the Davao Death Squad,
challenging the President to show his bank accounts which contained billions of money
from his illegal activities, and the exposing of various corrupt practices in the different
agencies of the Government.

On August 31, 2018, President Duterte signed Proclamation No. 572, which declared
the amnesty of Trillanes void ab initio. He ordered the immediate apprehension of the
Senator.

Based on the foregoing facts, the issues are as follows:

1. Can the president revoke an amnesty that has been granted and already
concurred in by Congress?

2. From the facts, did Senator Trillanes apply for amnesty?

3. Are the doctrines of immutability of a final judgment and double jeopardy

applicable here?

4. Which of the two orders should be affirmed/revised?

However, this memorandum would focus mainly on the applicability of the case to the
Magdalo Group in attaining justice according to philosophical theories and concepts.

Legal Standing

Prior to discussing the relevant issues, we would like to establish the legal standing of
the Magdalo group as inventors in the amnesty case of Trillianes. In Executive
Secretary v. Northeast Freight Forwarders, Inc., the Court had the opportunity to
expound on the allowance of inventors to a case:

this Court has ruled that such interest must be of a direct and immediate character so
that the intervenor will either gain or lose by the direct legal operation of the judgment.
The interest must be actual and material, a concern which is more than mere curiosity, or
academic or sentimental desire; it must not be indirect and contingent, indirect and
remote, conjectural, consequential or collateral. However, notwithstanding the presence
of a legal interest, permission to intervene is subject to the sound discretion of the court,
the exercise of which is limited by considering "whether or not the intervention will unduly
 delay or prejudice the adjudication of the rights of the original parties and whether or not
the intervenor's rights may be fully protected in a separate proceeding.

To allow intervention, (a) it must be shown that the movant has legal interest in the matter in
litigation, or is otherwise qualified; and (b) consideration must be given as to whether the
adjudication of the rights of the original parties may be delayed or prejudiced, or whether the
intervenor's rights may be protected in a separate proceeding or not. Both requirements must
concur, as the first is not more important than the second.

Applying to the case at bar, Proclamation No. 572 aims to nullify Proclamation No. 72
which granted amnesty to Oakwood mutineers now called Magdalo. The amnesty was
granted to members of the Magdalo group, along with Trillanes. As such, the results of
the case against Trillianes may affect the Magdalo group similarly. That is, assuming
arguendo that the Court grants that this Proclamation is only with regard to the non-
applicability of the amnesty to Trillanes, this is setting a precedent that may be used
against other Magdalo members to also revoke their amnesty. Hence, there being legal
interest in the results of the case, being the applicability on them, the Magdalo may be
considered as inventors in the case, the Court permitting.

Legal Basis

The Constitution recognizes and grants the power to the President to grant reprieves,
commutation, and pardons, and remit fines and forfeitures, after conviction by final
judgment. The President shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the Congress.1

This power of the Chief Executive was also enacted into legislation in the Revised Penal
Code. According to Article 89 of the Revised Penal Code2, amnesty completely
extinguishes the penalty and all the effects of the crime.

Moreover, Presidential Decree (PD) No. 1429 furthers discussed the amnesty powers of
the president. Sec. 4 of PD No. 1429 stipulates that,

Sec. 4. Conditions for the grant of amnesty. Any person applying for amnesty pursuant to
this Decree must satisfy with the following requirements:

(a) If under arrest or charged as of the date of this decree, he must submit this
application not later than September 30, 1978 in the prescribed form hereto attached as
Annex A;

If not under arrest, he must submit such application within six months after his arrest or
surrender;

1
PHILIPPINE CONSTITUTION, art. VII, sec. 19
2
The Revised Penal Code of the Philippines [REVISED PENAL CODE], Art. 89 (1932).
 (b) He must renew his oath of allegiance to the Republic of the Philippines and swear or
affirm to support and defend the Constitution of the Philippines; and

(c) He must surrender whatever unlicensed firearms and/or explosives and ammunition
3
he may have in his possession.

Hence, amnesty is not a unilateral act by the President. Rather, it requires the
concurrence of the Congress before it is granted. Since the granting of an amnesty
requires the concurrence of the Congress, it must also require their concurrence upon
revocation. This is essential for the balancing of powers. The law, being the
Constitution, that granted the president the power to give amnesty, is the same law that
requires the concurrence of the Congress. There is no power if there is no law granting
the same.

Also, the Constitution did not provide any provisions on revocation of the amnesty.
Following the principle of Expressio unius est exclusio alterius, had the framers
intended to include the revocation of the amnesty, the same could have been expressly
provided in the act.

Philosophical Theories

A. Social Choice Theory

Rawls provides that as a necessary premise to derive justice is the rationality of

goodness4. Humans, as rational beings, tend to decide on what is good – individually
and/or socially. This rationality varies person to person, should a person look only into
personal gains or consider the majority as well. With such outlook decisions are
rationalized and arrived at to achieve what is good and ideal to have the perfect society.

Sen further delves in the rational choice theory. This theory distinguishes that people
are not alienated to rationality and not that people may act in a rational way5. This said,
commentaries tend to appreciate that decisions are made with objectives of self-
interest. However, this may not be all true. Instead, the rationality of social good come
into play. Social Choice Theory focuses on the idea of achieving justice following a
framework wherein the choices and interests of society are taken into account. Sen
highlights the importance of the rational basis of social judgments and public
decisions6. The means to the decision can be as important as to the end decision,
choosing between alternatives which ought to be supreme.

Based on the foregoing theory, the President cannot revoke amnesty previously granted
on the basis of an ex post facto law. An ex post facto law7 is one which:
3
Revising Presidential Decree No. 124, Presidential Decree No. 1429, sec. 4 (1978).
4
JOHN RAWLS, A Theory of Justice, 349 (1999 revised ed.).
5
AMARTYA SEN, The Idea of Justice, 178 (2009).
6
SEN supra note, at 95.
7
LUIS B. REYES, THE REVISED PENAL CODE 2 (7th ed. 2017).
 1. Makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act.

2. Aggravates a crime, or makes it greater than it was, when committed;

3. Changes the punishment and inflicts a greater punishment than the law annexed
to the crime when committed;

4. Alters the legal rules of evidence, and authorizes conviction upon less authorizes
conviction upon less or different testimony than the law required at the time of the
commission of the offense;

5. Assumes to regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and

6. Deprives a person accused of a crime some lawful protection to which he has

become entitled, such as the protection of a former conviction or acquittal, or a
proclamation of amnesty.

Amnesty completely extinguishes the criminal liability of the offender8, and is an act of
the sovereign power granting oblivion or a general pardon for a past offense9. Thus, the
Proclamation revoking the amnesty is, in effect, an ex post facto law that deprives the
person some lawful protection to which he has already become entitled.

B. Impartiality and Objectivity

Rawls believes that justice is attained through fairness, and that fairness is that which
one can discern from our original position. This then requires the removal of our veils of
ignorance - we must strip ourselves of our biases and experiences.

Although this may seem quite far-fetched, it does not require the same stretch of
imagination to see that President Duterte’s revocation of Trillanes’ amnesty is one
grounded on ulterior motives. It is not a secret that Senator Trillanes is one of Duterte’s
most active and vocal critics. When the President equated the absence of a mere copy
of the Senator’s amnesty application to the non-filing of the same, it is quite clear that
biases stand in the forefront of such an allegation.

Moreover, on the presumption of regularity on the grant of amnesty. The amnesty was
granted on November 24, 2010 and was never questioned by anyone in the previous
administration. The process of applying and granting the amnesty enjoys the
presumption of regularity of the public officials in the absence of evidence to the
contrary.
8
The Revised Penal Code of the Philippines [REVISED PENAL CODE], Art. 89 (1932).
9
REYES, supra note 1, at 861.
Relevantly, although there are two conflicting claims by the Palace and the AFP, as
follows:

1. The palace claims that Trillanes did not file his application for amnesty. This was
supported by their claim that the Trillanes camp cannot present the application
form. Roque said that the form is a vital document as it will serve as a sine qua
non requirement for the grant of amnesty as it contains the admission of guilt. It
is not sufficient that the Trillanes camp has all the videos and photos to prove
otherwise.

2. On the other hand, AFP asserts that Trillanes has in fact applied for the amnesty.
This was confirmed during one of the committee hearings in the senate. This was
further supported by the Department of National Defense. The department has
released a letter signed by then DND Secretary Voltaire, which certified that
indeed, Trillanes, together with other officers has applied for the amnesty.
Trillanes filed the application on January 5, 2011.

The RTC remained impartial and looked into the evidence provided. The decision even
supported the AFP’s claim thru their released decision on the trillanes case. Sec.
Gazmin (DND Secretary) has released the Certificate of Amnesty, As such, it can be
inferred that Senator Trillanes has in fact filed an amnesty case.

C. Equal Liberty

Rawls recognizes that “an attractive feature of the principles of justice is that they
guarantee a secure protection for the equal liberties10.” These equal liberties suppose
that certain factors affect the interests and decisions of parties – moral, religious, or
philosophical. In effect, the outcome desired by one party may differ from another; in
this the principle of equal liberty is not in itself final. Nonetheless, to achieve fairness,
Rawls states: “We must choose for others as we have reason to believe they would
choose for themselves if they were at the age of reason and deciding rationally.11”
Moreover, equal liberty of conscience should be considered in attaining justice as
fairness. The state should not be partial, favoring one side as to the other.12

Sen appreciates equality as a factor of justice similarly. “The demand for seeing people
as equals relates, I would argue, to the normative demand for impartiality, and the
related claims of objectivity. … theories of justice tends to involve some way of treating
persons as equals at some basic level.13” Moreover, capability is an aspect to be

10
RAWLS, supra note, at 180.
11
RAWLS, supra note, at 183.
12
RAWLS, supra note, at 186.
13
SEN, supra note, at 293-294.
considered in utilizing equity as a theory of justice. The process has to be fair, to
achieve equity and efficiency in the opportunities people can enjoy.14

Based on the foregoing theory, the President cannot revoke the amnesty previously
granted applying the doctrine of immutability of a final judgement applies to the case at
bar as it does not fall under the circumstances exempted from the application of the
doctrine. In Spouses Florentino v. Dingal, the Court defined the doctrine of immutability
as “any alteration, modification, or correction of final and executory judgements as what
remains to be done is the purely ministerial enforcement of execution of the
judgement.15” Further, in Philippine Woman’s Christian Temperance Union, Inc. v.
Yangco the Court stated the following exceptions on the applicability of the aforesaid
doctrine:

(1) the correction of clerical errors;

(2) the so-called nunc pro tunc entries which cause no prejudice to any party;

(3) void judgements; and

(4) whenever circumstances transpire after the finality of the decision rendering its
16
execution unjust and inequitable.

As there is no clerical error in terms of the judgement rendered on the Executive's grant
on amnesty, the retroactivity of nunc pro tunc rulings apply only to clerical errors, the
judgement may not be considered void because Trillanes’ application was filed and his
admission of guilt was proven to have occured. In fact, what would be even more unjust
is if Trillanes’ amnesty would be declared void because the Magdalo party would be
denied an incumbent representative - more so, they come at the risk of silencing the
Filipino voters’ voice.

On the other hand, the concept of double jeopardy would not apply. Amnesty may be
withdrawn or declared void by a successive President given that there are actual
grounds for the same. However, in the case at hand, since the only ground for the
revocation of pardon is the alleged non-filing and non-admission of guilt, and the same
has not been proven.

14
SEN, supra note 296.
15
Spouses Florentino v. Dingal, 772 SCRA 51 (2015).
16
Philippine Woman’s Christian Temperance Union, Inc. v. Yangco, 720 SCRA 522 (2014).
Conclusion

We are affirming Judge Soriano's order which denied the issuance of Hold Departure
Order and Alias Warrant of Arrest against Trillanes. In arriving to said decision, the
following were considered:

1. Amnesty, as an executive power of the President subject to the concurrence of

Congress, cannot be dismissed by mere act of the President. Moreover, no
provision under the Constitution provides for the revocation of amnesty. Hence,
pursuant to the social justice theory, it would unjust for the President to revoke
amnesty granted without concern for the implications in society and how it would
become a bad precedent.

2. Revocation of amnesty can be construed as tantamount to an ex post facto law.

Considering that amnesty forgives a crime, revocation of the same may be
construed as depriving the accused of his right to be free from the past crime.
This would go against social justice theory which dictates that decisions are
made with the social interest and good in mind.

3. Philosophy of impartiality in justice. Provided that Trillanes did file apply for
amnesty as asserted by the AFP and the DND with certified letters, it would be
unjust for the Court to side with those against him on mere allegations.

4. Doctrine of immutability of final judgement. In accordance to the equality theory

which grants protection on rights to liberty, what has been decreed final should
not be modified without just cause.

We hope to have satisfied your questions.

Your Truly,

Chua, Jessica
Dee, Hazel
Endozo, Kathleen
Gonzales, Mica
Ordona, Regina
ALS 1-A

Philosophy of Law
Atty. La Vina