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Issues in Proclamation 572 against Trillanes

There are several issues for and against Senator Antonio Trillanes in Proclamation 572 issued by the President declaring his amnesty void ab initio. To understand it better, we have to go back to 2010 when President Noynoy Aquino issued the amnesty and when the Legislature concurred with it.

 

Were the constitutional requirements of the amnesty met?

The amnesty met all the constitutional requirements. Nobody questions or doubts this.

The 1987 Constitution gave the President the power to grant amnesty to a class or group of people who are being prosecuted or punished for a political offense. But this power will only be valid if BOTH the Senate and the House of Representatives concurred with it.

“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

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

The amnesty stated the subject of the amnesty – crimes punishable under the Revised Penal Code, the Articles of War or other laws in connection the July 27, 2003 Oakwood Mutiny, the February 2006 Marines Stand-Off and the November 29, 2007 Manila Peninsula Incident. However, instances of rape, acts of torture, crimes against chastity and other crimes committed for personal ends (like theft or robbery) were not part of the amnesty.

It detailed where to apply for the amnesty and where to oppose amnesty applications, specifically, the ad hoc committee of the Department of National Defense (DND). It stated that this committee would be the one to process all applications.

Proclamation 75 also stated that the ad hoc committee of the DND will make 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.

Both the Senate and the House of Representatives started working on a concurrent resolution in July 2010. They came out with Concurrent Resolution No. 4, series of 2010. Here, both Houses of Congress concurred with the proclamation. The Senate adopted the concurrent resolution on December 13, 2010 while the House of Representatives adopted it on December 14, 2010.

Concurrent Resolution No. 4 reproduced the entire text of Proclamation 75 and concurred in its entirety. This included the method for determining who will approve the application for amnesty – the ad hoc DND committee headed by the Secretary of the DND. In addition, the concurring resolution added that the applicant should admit his guilt. Thus, in the form for amnesty application, there was a general admission of guilt included as part of its terms.

Note that there were no individual persons named in Proclamation 75 or Concurrent Resolution No. 4. Instead,  these persons were to be identified and approved later by the ad hoc committee of the DND tasked to process amnesty applications.

From the facts, it looks like the proclamation was validly issued by the President and concurred in by both Houses of Congress. Hence, the constitutional requirements for issuing an amnesty were met.

 

Did Trillanes apply for amnesty?

The Ad Hoc Committee Resolution recognizing that Trillanes, along with several others, filed their application for amnesty

Video footage show Trillanes going to the DND ad hoc committee holding his application sometime in January 2011. He was seen filing his application for amnesty and taking an oath to admit his guilt and swear to the truth of his application.

Later that year, the DND issued an ad hoc committee resolution recognizing that Trillanes, along with several other soldiers, indeed filed their application for amnesty.

Later on, the DND issued a Certificate of Amnesty to him, signed by then DND Secretary Voltaire Gazmin.

On basis of the Certificate of Amnesty, the regular and military courts dismissed the pending cases of Trillanes.

Trillanes admitted that he did file an application for amnesty and that there was a statement in the amnesty form making a general admission of guilt. It was part of the form given by the DND for the amnesty application. He said that he to swear by it, and there was footage of him raising his right hand and taking an oath.

 

What was Proclamation 572, series of 2018 about?

Proclamation 572, series of 2018 revoked the amnesty of Trillanes because he allegedly did not file any application for amnesty and did not admit his guilt.

Office of the President based the Proclamation on a certification issued by the Deputy Chief of Staff that there was no record of Trillanes’ application for amnesty. As a result, the proclamation declared the amnesty of Trillanes void from the start – as if he never received amnesty.

But strangely enough, Proclamation 572 did note that Trillanes’ name was actually included in a resolution that officially stated that he filed his application was was granted amnesty. It is obvious that whoever were involved in the Proclamation did not do enough research. It looks like it was done hurriedly. The date of the certification and the date of the signing of the proclamation makes it quite obvious – the President signed the proclamation just the day after the Deputy Chief of Staff issued the certification about the missing application form.

 

What happened after Proclamation 572 was issued?

The day after Proclamation 572 was issued, the DOJ filed a motion with the Regional Trial Court handling Trillanes’ coup d’etat case for immediate issuance of a warrant of arrest. The DOJ thought that the RTC had only suspended the case while waiting for Trillanes and his cohorts to be granted amnesty. Unfortunately, it turned out that its records were incomplete. Considering that the records were still from 2011, the faulty record keeping could have also been the fault of the previous administration.

The DOJ found out later that day that the case had already been dismissed. The court could have denied the motion right there. But it instead decided to study the case. The court also gave Trillanes time to comment before it would issue its order.

The DOJ later filed a motion for issuance of another warrant of arrest in a different case in a different court. It was more careful here because this time, it knew that the case was already dismissed.

Faced with the fact that the cases against Trillanes had already been dismissed, the DOJ went on to say that Trillanes falsified his amnesty application or certification. However, as the days passed, the authentic documents started showing up.

As of now, the matter has gone beyond the lack of an amnesty application.

The DOJ now argues that whether there was a valid application or not should not matter. What is more important and more glaring is that it was NOT PNoy who granted the amnesty – it was DND Secretary Gazmin who did so. This is shown by  the fact that the resolution approving the persons to be granted amnesty were signed by Gazmin. It was also his signature that appeared in the letters granting amnesty.

The President and the DOJ are saying that a mere Secretary cannot grant amnesty – it should be declared and signed by the President himself.

 

Analysis

No automatic alt text available.The amnesty proclamation was issued by the President and was concurred in by both Houses of Congress. Both the Proclamation No. 75 and Concurrent Resolution No. 4 contained the method by which amnesty application would be received, processed, and approved. It even contained a method of appeals. Both documents gave power to the ad hoc committee of the DND to process and approve the persons who would be granted amnesty.

DND Secretary Gazmin, as head of the committee and head of the DND, therefore had full authority to determine who gets amnesty. This power was delegated to him by both the President and the Houses of Congress.

So, if Trillanes did file his application, took an oath with regard to its contents, and based on that, was granted amnesty, then his grant of amnesty was valid.

Or at least, it should be valid unless there is something about the Proclamation and Concurrent Resolution itself that makes it unconstitutional. If there is, then the Proclamation and Concurrent  Resolution can be declared unconstitutional. The effect of this would be that all who took advantage of the amnesty would now lose all the benefits of the amnesty.

 

What constitutional issue can be raised?

An issue that can be raised is the validity of the delegation of the power to the DND Secretary to make a final decision of who would be approved for amnesty.

The Constitution explicitly gives the power to the President alone. The question is whether or not the President can delegate this power to one of his alter-egos – specifically the DND Secretary.

The constitutional issue:  Is the delegation of authority to Gazmin is a valid delegation of power or not?

Even though the DND Secretary is an alter-ego of the President in the realm of National Defense, the fact remains that he is just an alter-ego, not the President himself. Since the Constitution vests authority solely on the President himself, then it is only the President who should sign the amnesty approval. In other words, the grant of amnesty should have been signed by PNoy, not Gazmin.

A counter argument here is that the Supreme Court had previously ruled on grants of amnesty by commission. The President then did not sign the specific grants of amnesty. Nobody has ever complained against the validity of the authority to sign the amnesty. We have jurisprudence with regard to the Guerilla Amnesty of 1946 issued by then President Manuel A. Roxas.

IN 1946, Roxas created several amnesty commission to process amnesty for guerillas who acted patriotically during World War II. The Legislature then also concurred in the amnesty proclamation. He was not a signatory to these grants of amnesty, but their grants were never questioned on the fact that it was not Roxas himself that signed them. This can be used as precedence to say that the Gazmin amnesty grants are legal.

However, it is a basic legal principle that the Supreme Court should not issue a ruling on issues that are not raised. Since the validity of the signatory was never raised, then there was no way it could have ruled on its validity. This means that if someone were to raise this issue now, then the SC can rule on it.

If this issue goes to the Supreme Court, it would be an interesting case to read.

 

Cyber-libel against public figures like Trillanes

Trillanes filed a case against PCOO ASec. Mocha Uson for three counts of cyber-libel for falsely spreading information about him. One of the charges was for writing online that he had hidden wealth in off-shore bank accounts. But the law in this case isn’t just between Trillanes and Mocha. It involves any person who speaks against Trillanes or any other public personality. Can cyber-libel be filed against them too?

What is cyber-libel?

Cyber-libel is actually just libel that is committed using a computer network. The penalty of cyber-libel is much higher because of the ease and speed that it can be committed.

Libel is defined under Article 353 of the Revised Penal Code. There are two types of libel – (1) libel through written means, and (2) slander, which is essentially libel by use of spoken words.  The Supreme Court summed up the law this way:

Under Article 353 of the Revised Penal Code of the Philippines, libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead. Thus, the elements of libel are: (a) imputation of a discreditable act or condition to another; (b) publication of the imputation; (c) identity of the person defamed; and, (d) existence of malice. – Supreme Court

You commit libel when you say or write something that discredits another, or attributes some unfavorable condition, which  would affect the way that people would see or interact with that person. That thing you say or write has to be published or publicized in some way. It should clearly identify the person defamed. And lastly, publishing or publicizing must have been done maliciously.

What matters is the presence of malice in publishing or in publicizing those things about the other person.

Libel for politicians and public figures

The Supreme Court removed all the fangs of the libel law and made it into a harmless paper tiger, at least when applied to public officers and public figures. Politicians and other public personalities can threaten to file libel, but it’s just a lot of posturing with no teeth. The cases will probably be dismissed for as long as the other person can show some basis for what they said or wrote. In these cases, the truth is a defense.

The biggest difference between libel against public figures and against private persons deals with the presumption of malice. In libel against private persons, malice is presumed by mere fact of publication. In libel against public figures, malice is NOT presumed.

Our libel laws are criminal in nature. That means that they may abridge freedom of speech or freedom of the press. What would happen if the media or social media were under threat of libel all the time? It would silence people. It would silence our ability to determine or demand accountability for corruption and wrongful acts. In the words of Benjamin Franklin “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” That is why malice is not presumed.

The Supreme Court made sure that this will never happen. In jurisprudence, public officers and public personalities may only win a libel case if it is shown that the writer knew that what he had written was false, or if he had been “recklessly indifferent to its truth or falsity.” This means that the writer would be completely protected against libel if he KNEW he was lying, or was foolishly thinking that he was telling the truth despite contradicting facts staring him in the face. What was written should be clearly false or, if true, should have been written in a way that is clearly malicious.

Our Supreme Court also clarified that a public figure includes any public official (one who works for the government), a famous or notorious person in the community, or one who thrusts himself into some public controversy to influence its resolution (“nakiki-sawsaw”). As an example:

Thus, for example, Jerry Falwell is a public figure and, as a famous case holds, he is barred from recovering against a magazine that portrays him as having had sex with his mother. Movie stars and famous athletes also qualify as public figures. – cited by the Supreme Court

False speech against public figures is very hard to successfully prosecute because public figures are not protected from libel except in very extreme circumstances. It is very hard to prove those circumstances.

For example, how would the normal person on the street or in Facebook know if the information he got from another about the public figure is false? He is not required to research. If he reads it in a source he considers reputable, then any case filed against him would be dismissed.

Media companies, on the other hand, are required to diligently research what it reports. They just can’t report that there is an killing quota for drug pushers without really checking if this is true (that’s an example of something written recklessly indifferent to truth or falsity).

Why are public figures not covered completely by libel laws? First of all, let’s talk about public officers. It is a basic principle that public office is a public trust and that ALL our public officers are accountable to the public. We have an interest not just in their work, but also in their lives. We can write about them, talk about them, and reveal things about them that may have an effect on their office. These include pictures.

For other public figures, the principle is different. They shed their privacy by going into the public eye. By shedding their privacy, they have prepared themselves for invasions of privacy which include defamatory statements made because of their acts or perceptions of their acts.

Don’t be afraid to criticize

We should practice our freedoms so that they would not be taken away. This isn’t just about Trillanes. It is about all public figures. We are free to criticize them, their work, their beliefs, and anything else we don’t like about them. Just make sure you’re not making malicious statements. The Supreme Court defined malicious speech that which is written to injure the reputation of the person defamed.

Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. It is present when it is shown that the author of the libelous remarks made such remarks with knowledge that it was false or with reckless disregard as to the truth or falsity thereof. – Supreme Court

As long as you don’t make malicious accusations or make remarks you know to be  false, your speech is protected.