AMNESTY FOR ABUSAYYAF-GORDON?

In yesterday's (15 July 2009) issue of Manila Standard there was a headline: AMNESTY FOR ABU SAYYAF-GORDON...

Relevant to the headline yesterday, allow me to cite some of the cases decided by the Supreme Court in the granting of amnesty.

In the case of People of the Philippines v. Casido decided in 1997, the Court said that: "We agree with the Office of the Solicitor General. In Barrioquinto, we stated as follows:

x x x.

Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, and it is a public act of which the courts should take judicial notice. Pardon is granted to one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolishes or forgives the punishment, and for that reason it does “nor work the restoration of the rights to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,” and it “in no case exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence” (article 36, Revised Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it 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. (underscoring supplied)

Also, in the 1903 case of VILLA vs. ALLEN the Court held that:

"The inquiry arises as to the effect and operation of the amnesty proclamation. This must be determined by a consideration of the terms of the proclamation itself, and the principles of the common law applicable to amnesty and pardon.

The proclamation is, by its express terms, both one of pardon and amnesty. It extends to the offenses of treason or sedition, and all offenses political in their character, or which grew out of internal political feuds or dissensions between Filipinos and Spaniards or the Spanish authorities, or which resulted from internal political feuds or dissensions among the Filipinos themselves during either of the insurrections referred to in the proclamation.

Amnesty commonly denotes the "general pardon to rebels for their treason and other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended by some breach of the law of nations." (1 Bish. Cr. L., sec. 898.)

The term "amnesty" belongs to international law, and is applied to rebellions which by their magnitude are properly within international law, but has no technical meaning in the common law. It is a synonym of oblivion, which in the English law is the synonym of pardon. (Bouvier, "Amnesty.")

In so far as the proclamation extends to the offenses of treason and sedition, it may be regarded as an amnesty.

But as to those offenses which have arisen out of internal political feuds and dissensions among the Filipinos themselves, such as the ordinary crimes of murder, robbery, arson, etc., the proclamation must be regarded in the nature of a pardon.

A pardon may be general, applying to all persons falling within a certain category, or it may be conceded to a single individual for an ordinary crime, in which latter case it is a special pardon, and is evidenced by a writing, the acceptance of which is necessary in order that it may become effectual.

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. (United States vs. Wilson, 7 Peters, 163.)

It will not be necessary in this case to determine whether the defendant could be discharged on habeas corpus had he been charged in the information with treason or sedition.

It is true that the proclamation as a public act would be judicially noticed by the court; but the information charges the petitioner with murder, and it can not be contended that the court can take judicial notice that the murder charged against the defendant grew out of political feuds and dissensions between Filipinos and Spaniards, or between Filipinos themselves. Where it becomes necessary to make such inquiry, the benefits of the proclamation must be obtained through the agency of the courts, in the regular course of the judicial proceeding by the ordinary method of trial.

At the English common law, where the pardon is obtained before issue joined, it must be pleaded as other matters in confession and avoidance, under the particular jurisdiction. If after the issue joined, the pardon should be brought to the attention of the court in some manner suitable to the advanced stage of the proceedings. After conviction and before sentence, it was generally made in response to the question whether the accused had anything to say why sentence should not be pronounced; and when the case is on appeal, the pardon may be properly called to the attention of the appellate court either by the suggestion of the State's attorney that the defendant has been pardoned or by application of the person pardoned. (15 Enc. P. and P., 449.)

At the ancient common law, pardon after conviction and sentence made it necessary to plead the pardon by suing out a writ of habeas corpus before a discharge could be secured. In America the practice is for the warden or keeper of the prison to discharge the prisoner upon presentation of a pardon. It would not be proper for the warden of the prison to attempt to determine the question as to whether the prisoner was entitled to discharge under the proclamation in question. Nor would it be proper for a court on habeas corpus to discharge him.

For it is expressly provided in the proclamation that the pardon does not include such persons as have been heretofore finally convicted of the crimes of murder, rape, arson, or robbery, "but special application may be made to the proper authority for pardon of any person belonging to the exempted classes, and such clemency as is consistent with humanity and justice will be liberally extended." (Proclamation of the President, July 4, 1902.)

If the defendant wishes to avail himself of the benefits of the amnesty proclamation, it will be necessary for him to plead this defense, and the evidence must disclose in this particular case that he is entitled to its benefits. It will not be sufficient to rely upon the decision of this court in the case of Jose and Isidro Guzman, in which the benefits of the amnesty proclamation were conceded to appellants. The defendants Villa did not participate in that trial and was not bound by the proceedings of the Court of First Instance therein, nor would the Government be bound by the judgment in that case. As to him the case must be tried de novo."

Is kidnap for ransom a political offense.....?