Duterte cannot void amnesty on his own: legal experts

ABS-CBN News

Posted at Sep 04 2018 04:04 PM | Updated as of Sep 04 2018 04:18 PM

MANILA – An amnesty cannot be undone by a unilateral act. 

Legal experts had this take Tuesday following President Rodrigo Duterte’s decision to void the amnesty granted his critic Senator Antonio Trillanes IV in 2011 for leading uprisings against the government more than a decade ago. 

For constitutionalist Florin Hilbay, a former Solicitor General, Duterte could not take the unilateral act of voiding an amnesty granted by his predecessor. 

Former President Benigno Aquino III had granted Trillanes amnesty and several others for mounting uprisings in 2003 and 2007 – a decision that also went through rigorous proceedings in the military. 

“The important point here is that once the amnesty is given and accepted, succeeding administrations such as the present administration can no longer nullify that without any court judgment,” Hilbay told ANC. 

He said voiding such contract required a separate court action and could not be done just by a unilateral executive act. 

“Given that it has already been accepted (by Trillanes), that amnesty is already final. You need a separate judicial declaration of nullity of that amnesty for it to be really nullified. Otherwise, the president cannot on his own unilaterally withdraw or declare as null and void the amnesty,” he said.

Legal and governance expert Tony La Viña held the same view, saying no incumbent could reverse the previous administration’s grant of amnesty, a political act. 

“What is important is [former Defense] Secretary [Voltaire] Gazmin, the board and military and President Aquino did their job and granted that amnesty. You do not question that ever,” he said. 

Duterte’s Presidential Proclamation No. 572 released Tuesday voided the amnesty granted Trillanes, rendering it null upon issuance, for the senator’s supposed failure to comply with requirements including his admission of guilt. 

MILITARY HAS NO JURISDICTION OVER TRILLANES

Justice Secretary Menardo Guevarra, who Duterte put in charge of government while he is away on an official trip to Israel, said the effect of the proclamation is that the amnesty if “void ab initio…as if it never existed.” 

The proclamation also ordered the military and police “to employ all lawful means to apprehend” Trillanes, a former Navy lieutenant. 

But with Trillanes already a civilian, the military no longer has jurisdiction over him, Hilbay said. He said any grant of an amnesty also terminates all civil and criminal proceedings against its beneficiary. 

“Given that he is no longer part of the military, it simply follows that the military will no longer have jurisdiction over him,” Hilbay said. 

La Viña meanwhile also called the action “unfortunate,” citing possible dire consequences on future amnesty negotiations with rebels. 

“It’s unfortunate not just for the legal aspect but also for the policy aspect…. It’s unfortunate and it has an impact for the future because we’re always negotiating this amnesty in all our political settlements, and now you’re basically saying we open everything every time we don’t like what you say,” he said. 

La Viña said those who may negotiate an amnesty with government in the future, for instance Moro rebels, may be left second-guessing. 

“People that are negotiating with us, the MILF (Moro Islamic Liberation Front) amnesties, they have to have second thoughts whether they will accept an amnesty or not, if it can be changed anytime,” he said. 

Trillanes has vowed to fight Duterte's proclamation and said he would stay in Senate custody.