Only the President can grant Amnesty

Under the 1987 Constitution and our previous constitutions, only the President can grant amnesty, and only with the concurrence of Congress.

In law school, we all thought that this was a very clear principle, but the Trillianes amnesty issue came up. Now there are debates all over.

Can the President delegate the declaration of who will be covered by amnesty to the Secretary of the Department of National Defense (DND). Many  legal minds now debate this issue, and we will not see it resolved until it is brought to the Supreme Court.


Can the President really delegate responsibility?

Yes. In fact, he has to.

The Constitution gives all the powers of the Executive Branch to one person alone – the President. But the President cannot attend to everything. We cannot expect him to be the one running a government school or hospital. We can’t expect him to know everything happening in even just one of his departments. This is why he is allowed to delegate his power to his Cabinet members. In legal terms we consider these people alter-egos of the President.

That means that when Cabinet members act, it is as if it is the President is the one acting. That is a legal principle which the Supreme Court has ruled on in the landmark case of Villena v. Secretary of the Interior in 1939. Since then, the SC has reiterated it consistently. Lawyers call it the Qualified Political Agency doctrine.

Essentially, the doctrine states that all executive and administrative organizations are adjuncts of the President and that the heads of the various executive departments are agents of the President. Hence, all acts of the Secretaries of departments are considered as acts of the President unless he disapproves or changes those acts.


Does this mean that the Secretary of National Defense can declare Martial Law when he wants to?

No. The Constitution gives certain powers to the President ALONE, which he cannot delegate to others.

This is also noted in the Villena case. The SC declared that there are two exceptions to the doctrine of Qualified  Political Agency. The exceptions are: (1) “in cases where the Chief Executive is required by the Constitution or the law to act in person or (2) when “the exigencies of the situation demand that he act personally.”

In fact, the Villena case was crystal clear in saying that there are certain constitutional powers that can only be exercised by the President alone, which he cannot delegate to anyone. Those powers should be exercised by him alone. If ever one of his alter-egos perform that action, no amount of approval or official ratification will make the action valid. It would always be illegal. The exact words:

“There are certain constitutional power and prerogatives of the Chief Executive of the Nation which must be exercised by him in person and no amount of approval or ratification will validate the exercise of any of those powers by any other person.” — Supreme Court in Villena vs. Secretary of the Interior (April 21, 1939)


What about the Oakwood-Manila Peninsula Siege Amnesty?

President Noynoy Aquino issued  Proclamation No. 75, series of 2010  granting amnesty to those involved in the Oakwood Mutiny, the Marine Standoff, and the Manila Peninsula Incident.

Proclamation 75 delegated to the ad hoc committee of the DND the power to the final determination on who will qualify for amnesty and who will not. It even declared that any decision can be appealed to the Office of the President. The president sent this proclamation to both Houses of Congress for their concurrence.

The Senate and House of Representatives concurred with the terms of Proclamation  No. 75. They issued Concurrent Resolution No. 4, Series of 2010.

No automatic alt text available.The ad hoc committee of the DND made a final determination of who qualified for amnesty. This was signed off by then Secretary of National Defense Voltaire Gazmin. So far, none of the documents presented to the public show that PNoy approved or even signed off on the list.

In fact, the documents show that it was Sec. Gazmin who was made a final determination of who is approved for amnesty and the fact that he was the one who approved the recommendation of the ad hoc amnesty committee  and that he was the one who actually granted the amnesty.


What is the issue?

The issue is whether or not the amnesty is valid.

Here, the amnesty issued by the President was issued and concurred with the the Houses of Congress. It detailed a procedure on how amnesty will be determined and approved. It even gave a process for appeals.

It is legal to give the power to process applications and make recommendations to the DND ad hoc committee. This is a very acceptable delegation of power.

But can the power to approve and officially declare who are covered by the amnesty be given to a mere alter-ego of the President? The Constitution itself requires that the President be the one to grant amnesty.

“Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant AMNESTY with the concurrence of a majority of all the Members of the Congress.” -Section 19, Article 7, 1987 Constitution

In light of the Villena case, that means that only the President can grant amnesty. It is an act which he cannot delegate or later on ratify.

The only question we have to answer is what exactly does amnesty include? Is the amnesty just issuance of an amnesty declaration, or does it also include the final declaration of who are granted amnesty?

That is the issue here.

Oscar Franklin Tan wrote an article where he said, “The point is, the Constitution requires the president to personally grant only the amnesty itself, not implement it.”

“Does the president need to personally sign the final certificate? The “Qualified Political Agency” doctrine (a Cabinet secretary’s act is the president’s) is irrelevant. The point is, the Constitution requires the president to personally grant only the amnesty itself, not implement it.” – Oscar Franklin Tan.

READ MORE: Can Blockchain Help Trillanes

That’s a good point. But it isn’t the only opinion going around.

Personal comment

This should not have even been an issue.

I do not understand why the list of approved amnesty applicants could not just have been sent to the Office of the President for final approval. The President does not have to sign the actual certifications of amnesty. But he should at least sign off on the list of approved persons. That only needed a few seconds. He had FIVE YEARS remaining as President.

Something so important that it is explicitly written in the Constitution with such stringent requirements should be treated more seriously.

Let’s compare this: Treaties with foreign countries need JUST the concurrence of the Senate. Getting an amnesty is much harder because it requires getting the concurrence of BOTH the Senate and the House Representatives. If you don’t treat that seriously, there’s something wrong in your priorities.

If the President took this seriously, then it should not even be an issue today. It is just one of those stupid things that could have been avoided easily, but which now take the place of more important national concerns.


My previous article on this topic can be read here:

Issues in Proclamation 572 against Trillanes


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