G. Executive clemency

Frequency: ★★★☆☆ | Probability: ★★★☆☆

1. Forms and limitations

General Rules:
1) The President may grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final judgment. (Section 19, Article VII, 1987 Constitution)
2) He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress. (Paragraph 2, Section 19, Article VII, Ibid.)
Exceptions:
1) Impeachment cases;
2) Cases that have not yet resulted in a final conviction; and
3) Cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. (Risol-Vidal v. COMELEC, En Banc, G.R. No. 206666, 21 January 2015)

Application. Executive clemency may be extended to both:

1) Administrative cases; and

2) Criminal cases. (Llamas v. Orbos, En Banc, G.R. No. 99031, 15 October 1991)

a. Pardon

Pardon.Pardon – is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended and not communicated officially to the court. (Ibid. citing Bernas, The Constitution of the Philippines, Vol. II, First Ed. 1988, pp. 239-240, citing U.S. v. Wilson, 7 Pet. 150 [U.S. 1833]).

President alone to exercise. Since the Chief Executive is required by the Constitution to act in person, he may not delegate the authority to pardon prisoners under the doctrine of qualified political agency. (Tiu v. Dizon, G.R. No. 211269, 15 June 2016)

Absolute discretion on the President. The pardoning power of the President cannot be limited by legislative action. (Risol-Vidal v. COMELEC, En Banc, G.R. No. 206666, 21 January 2015)

No notice required. Notice to the recipient of the pardon is not necessary. (Llamas v. Orbos, En Banc, G.R. No. 99031, 15 October 1991)

Covers administrative cases. The President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses. (Ibid.)

Same; Limited to Executive branch. However, executive clemency in administrative cases refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government. (Ibid.)

•••••

BAR EXAM QUESTION

(Question IV-A, Political Law, 2017 Bar Exam)

What is the pardoning power of the President under Art. VIII, Sec. 19 of the Constitution?

Is the exercise of the power absolute? (4%)

Suggested Answer:

1) Under the Constitution, 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.

2) The exercise of such power is absolute in the sense that the pardoning power of the President cannot be limited by legislative action: Provided, that the exercise thereof is consistent with the 1987 Constitution.

•••••

1) Absolute pardon

Removes all disabilities. An absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction. (Monsanto v. Factoran, Jr., En Banc, G.R. No. 78239, 09 February 1989)

Relieves all punitive consequences. Full pardon, at least one not based on the offender’s innocence, relieves the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt.  But it relieves him from nothing more. “To say, however, that the offender is a ‘new man’, and’”as innocent as if he had never committed the offense;’ is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction.” (Ibid.)

Future-looking. A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” (Ibid.)

Monsanto v. Factoran, Jr.
The pardon was not based on the innocence of the pardonee. Thus, this would explain why the pardonee, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits (Ibid.)

2) Conditional pardon

Conditional pardon. Conditional pardon – is “a contract between the sovereign power or the Chief Executive and the convicted criminal to the effect that the former will release the latter subject to the condition that if he does not comply with the terms of the pardon, he will be recommitted to prison to serve the unexpired portion of the sentence or an additional one. By the pardonee’s consent to the terms stipulated in this contract, the pardonee has thereby placed himself under the supervision of the Chief Executive or his delegate who is duty-bound to see to it that the pardonee complies with the terms and conditions of the pardon.” (Risol-Vidal v. COMELEC, supra.)

Pardon papers. The individual pardon papers contain the terms and conditions of the contract of pardon, the compliance of which is essential to the pardonee’s freedom from recommitment to prison. (Ibid.)

Purely exectuve acts; No judicial scrutiny. The grant of pardon and the determination of the terms and conditions of a conditional pardon are purely executive acts which are not subject to judicial scrutiny. (Ibid.)

a) Effects of pardon

Forgiveness, not forgetfulness; Restores all civil rights. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. (Garcia v. COA Chairman, G.R. No. 75025, 14 September 1993)

No backwages. Unless expressly grounded on the person’s innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages. (Ibid.)

Relieves all punitive consequences. If the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent; as if he had not been found guilty of the offense charged. When a person is given pardon because he did not truly commit the offense, the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring to him his clean name, good reputation and unstained character prior to the finding of guilt. (Ibid.)

Garcia v. COA Chairman (1993)
The pardonee was granted clemency based on his innocence. The bestowal of executive clemency on petitioner in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. This signifies that petitioner need no longer apply to be reinstated to his former employment; he is restored to his office ipso facto upon the issuance of the clemency… Petitioner’s automatic reinstatement to the government service entitles him to back wages.

No exemption from civil indemnity. A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed upon him by the sentence. (Paragraph 2, Article 36, Ibid.)

Right to hold public office and suffrage – unless expressly restored. A pardon shall not work the restoration of the right to hold public office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon. (Article 36, Revised Penal Code)

The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon. (Article 41, Ibid.)

Under Articles 36 and 41 of the Revised Penal Code, the pardon of the principal penalty does not carry with it the remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon. It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the effect of the pardon so decided upon by the President on the penalties imposed in accordance with law. (Risol-Vidal v. COMELEC, supra.)

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to define crimes and prescribe the penalties for such crimes and the power of the President to grant executive clemency. (Ibid.)

Case Law

1) In Riso-Vidal v. COMELEC, a close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The first sentence refers to the executive clemency extended to former President Estrada who was convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. The latter is the principal penalty pardoned which relieved him of imprisonment. The sentence that followed, which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. (Ibid.)

2) In U.S. v. Guarin, there is nothing in the provisions of the Penal Code touching the crime of adultery, as amended by Act No. 1773, which would justify us in holding that the power of the Chief Executive to pardon one of two offenders who have been convicted of adultery is limited by any rule by virtue of which such pardon must inure to the benefit of the other. (U.S. v. Guarin, En Banc, G.R. No. L-9900, 15 March 1915)

2) Amnesty

a) Pardon v. Amnesty

PardonAmnesty
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.Amnesty is 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.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 abolished or forgives the punishment, and for that reason it does “not 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”.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.

(Barrioquinto v. Fernandez, G.R. No. L-1278, 21 January 1949)

•••••

BAR EXAM QUESTION

(Question VI-B, Political Law, 2017 Bar Exam)

Distinguish pardon from amnesty. (4%)

1) 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. On the other hand, amnesty is 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.

2)  Pardon is granted to one after conviction. On the other hand, 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.

3) Pardon looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is, it abolished or forgives the punishment, and for that reason it does “not 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”. On the other hand, 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.

•••••

3) Commutations

The reduction of a prisoner’s sentence is a partial pardon, and our Constitution reposes in the President the power and the exclusive prerogative to extend the same. The 1987 Constitution, specifically under Section 19, Article VII thereof, provides that the President possesses the power to grant pardons, along with other acts of executive clemency. (Ibid.)

4) Reprieves

Reprieve – is the postponement of a sentence of death. Webster defines the word reprieve as “the temporary suspension of the execution of a sentence, especially of a sentence of death,” and there are not lacking those who maintain that this word ought to be applied only to postponement of a sentence of death. (Director of Prisons v. Judge of CFI Cavite, En Banc, G.R. No. L-10543, 23 January 1915)

5) Remit fines and forfeitures

NB: The President may remit fines and forfeitures, which have been imposed as penalties for the commission of a crime and/or as part of disciplinary action in an admimistrative case.

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