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.....?

Father Joaquin G. Bernas Column re: Presidential Reelection

Presidential reelection?
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer

I have often been asked whether a person who has once been elected president— Aquino, Ramos, Estrada, Arroyo—may be re-elected to the same office. Rather than answer the question, let me just reproduce what I see reflected in the deliberations of the 1986 Constitutional Commission. I leave each of my readers to come to his or her own conclusion. And of course, the final answer will come from the Supreme Court.

The subject was debated on July 25, 1986 as part of the consideration of the term of various elective officers. The Commission was presented with three possible options regarding the president’s term: (1) no immediate reelection; (2) no re-election; (3) unlimited number of reelections.

“No immediate reelection” meant the possibility of reelection after some interruption. Unlimited number of reelections meant just that. But what did “no re-election” mean? The following exchange took place:

BISHOP BACANI: I would like a clarification first. Does “No reelection” mean the President can never be reelected?

THE PRESIDENT [Cecilia Muñoz Palma]: I believe the motion is just for non-reelection, is it not?

MR. ROMULO: No reelection.

THE PRESIDENT: But it does not say forever.

MR. ROMULO: The meaning of no reelection is that the person can never run again—absolute ban.

BISHOP BACANI: Therefore, if she ceases from office she cannot run even after six years.

THE PRESIDENT: Even after?

BISHOP BACANI: That is the understanding. Thank you.

When the choices were finally put to a vote, 32 voted in favor of “no immediate reelection” and only 5 against.

Before the day’s session ended, however, Commissioner Ambrosio Padilla moved for a reconsideration of the decision. His motion to reconsider was approved 22 to 5.

In the ensuing debate, Commissioner Padilla was the main proponent of a perpetual ban on reelection while Commissioner Francisco “Soc” Rodrigo sought the retention of the original vote for “no immediate reelection.”

Before a vote was taken on the subject, the presiding officer made sure that the meaning of Padilla’s proposal was clear to all:

THE PRESIDENT: So, the effect of this is, the President will serve for six years without reelection. That carries a total ban on his being elected again at any future time to the position of President.

MR. PADILLA: That is correct. It is a continuing prohibition for reelection.

Before the commissioners cast their ballot, the president reiterated her clarification:

THE PRESIDENT: The vote will be “yes” if one is in favor of Commissioner Padilla’s proposal or “no” if one is against.

Forty-two (42) commissioners cast their ballot. After the ballots were counted, the president made the announcement:

THE PRESIDENT: The results show 26 votes in favor, 15 against and 1 abstention; the proposal that the President will serve a six-year term without reelection at any time is approved.

That was not yet the end, however. Commissioner Serafin Guingona, who was the only one who had abstained in the voting on Padilla’s proposal, did not think that the matter was over.

MR. GUINGONA: I beg the Chair’s indulgence to present my proposal.

THE PRESIDENT: Commissioner Guingona is recognized.

MR. GUINGONA: My proposal is that the President shall be elected for a term of six years and may run for one reelection immediately after his term, provided that no President may serve for more than 12 consecutive years.

In effect, Guingona was asking for a reconsideration of the vote favoring Padilla’s proposal for a total ban. The body considered it a reconsideration and voted 31 against and 10 in favor.

The final action on the presidency, however, did not come until the body deliberated on the draft article on the executive department. The draft evidently had been prepared before the Commission could finish its consideration of the term of office of various national elective officials. Hence the draft still contained the following provision on the president: “He shall be disqualified from immediate reelection.”

On July 29, 1986, Commissioner Lorenzo Sumulong, in his sponsorship speech on the draft, pointed out that the word “immediate” should no longer be there. On July 30, during the period of amendments, Commissioner Hilario Davide Jr. proposed what is now the final version: “The President shall not be eligible for any reelection.” He explained his amendment thus: “The purpose of this amendment is to be consistent with what the body had approved in the matter of the term of the President.”

Before the final approval of the Davide amendment there ensued the following exchange:

MR. [FLORENZ] REGALADO: May we inquire from Commissioner Davide why he proposes that the President shall be completely ineligible for any future elective office lower than the presidency? . . . Would it not be possible that perhaps a former President may wish to share his talents and experience with the people by running for a lower position like that of a Senator?

MR. DAVIDE: He can. He is only banned from reelection, meaning to the same office, but not from running for any office. So the wording is very clear: “THE PRESIDENT shall be INELIGIBLE FOR ANY reelection.”

I am sure that by now Ambassador Davide has already heard that not a few refuse to see the matter as very clear. As for me, it is at least very clear that a former president, male or female, is qualified to run for congressman, senator or vice president!
But, wait! Is there an exception from the total ban in favor of an elected president who, for whatever reason, may have served for less than a full tenure? All I know is that no such exception was discussed or even proposed. There was no discussion whatsoever of length of tenure, but only of length of term.

Temporary Restraining Order

For the court to issue a writ of preliminary injunction, the petitioner must be burdened to establish the following: (1) a right in esse or a clear and unmistakable right to be protected; (2) a violation of that right; and (3) that there is an urgent and permanent act and urgent necessity for the writ to prevent serious damages...

Psychological Incapacity as a ground for annulment of Marriage

In the case decided by the Supreme Court the following are the root cause of “psychological incapacity.”

Among them are grounds that are medically and clinically established, alleged in the complaint, and sufficiently proven by experts.

The decision must clearly state the grounds and the incapacity must be proven to have existed at the time of the marriage.

The SC said there must be evidence to show that the illness existed when the parties got married and the incapacity must also be shown to be medically or clinically permanent or incurable.

“Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolute against everyone of the same sex,” the SC said.

The SC stated the illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.

Mild character peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes, the SC said.

“The illness must be shown as downright incapacity or inability, not refusal, neglect or difficulty, much less ill will,” the high court added.

However, in a recent case decided by the Court on liberalizing the required proof for the declaration of nullity of marriage under Article 36, or whether the Court abandoned the Molina doctrine.

The Court said NO in the case of Ting v. Ting promulgated on 31 March 2009, the Court said that:

". . . in hindsight, it may have been inappropriate for the Court to impose a rigid set of rules, as the one in Molina, in resolving all cases of psychological incapacity. We said that instead of serving as a guideline, Molina unintentionally became a straightjacket, forcing all cases involving psychological incapacity to fit into and be bound by it, which is not only contrary to the intention of the law but unrealistic as well because, with respect to psychological incapacity, no case can be considered as on “all fours” with another.

By the very nature of cases involving the application of Article 36, it is logical and understandable to give weight to the expert opinions furnished by psychologists regarding the psychological temperament of parties in order to determine the root cause, juridical antecedence, gravity and incurability of the psychological incapacity. However, such opinions, while highly advisable, are not conditions sine qua non in granting petitions for declaration of nullity of marriage. At best, courts must treat such opinions as decisive but not indispensable evidence in determining the merits of a given case. In fact, if the totality of evidence presented is enough to sustain a finding of psychological incapacity, then actual medical or psychological examination of the person concerned need not be resorted to. The trial court, as in any other given case presented before it, must always base its decision not solely on the expert opinions furnished by the parties but also on the totality of evidence adduced in the course of the proceedings.

It was for this reason that we found it necessary to emphasize in Ngo Te that each case involving the application of Article 36 must be treated distinctly and judged not on the basis of a priori assumptions, predilections or generalizations but according to its own attendant facts. Courts should interpret the provision on a case-to-case basis, guided by experience, the findings of experts and researchers in psychological disciplines, and by decisions of church tribunals.

Far from abandoning Molina, we simply suggested the relaxation of the stringent requirements set forth therein, cognizant of the explanation given by the Committee on the Revision of the Rules on the rationale of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC), viz.:

To require the petitioner to allege in the petition the particular root cause of the psychological incapacity and to attach thereto the verified written report of an accredited psychologist or psychiatrist have proved to be too expensive for the parties. They adversely affect access to justice o poor litigants. It is also a fact that there are provinces where these experts are not available. Thus, the Committee deemed it necessary to relax this stringent requirement enunciated in the Molina Case. The need for the examination of a party or parties by a psychiatrist or clinical psychologist and the presentation of psychiatric experts shall now be determined by the court during the pre-trial conference."