Gov't looks beyond proclamation to justify voiding Trillanes amnesty

MANILA, Philippines — Sen. Antonio Trillanes' legal challenge to President Rodrigo Duterte's Proclamation 572 has gained ground on two levels of the judiciary: Hearings have been set in two Makati courts and the Supreme Court has ordered the government to comment on his petition questioning the proclamation.

Despite the proclamation specifically saying Trillanes' amnesty is void because he failed to comply with the requirements—a point contradicted by documents—the government now says President Benigno Aquino III should have approved the amnesty, Defense Secretary Voltaire Gazmin.

Where does this new argument figure in the debate on Trillanes' amnesty?

Duterte's new legal theory

Duterte was in Israel when the controversial proclamation was published in the classifieds section of the Manila Times.

Upon his return on September 8, Duterte changed the narrative surrounding his voiding of Trillanes' amnesty. He said Gazmin may have committed “usurpation of authority” when he recommended, then later signed, the amnesty for Trillanes and others who had joined mutinies against the Arroyo administration.

READ: Fact check: Palace claims 'usurpation of authority' committed in granting Trillanes amnesty

On Monday, September 10, presidential spokesperson Harry Roque argued that the amnesty is void since it needed a signature of the president, and not an alter ego (literally "other self").

“The president’s (Duterte’s) belief as a lawyer is that an amnesty must be personally granted by the president. It cannot be further delegated to other officials,” Roque, a former law professor, said in a press briefing.

This argument, however, is nowhere in the text of Proclamation 572.

'Misreading' Constantino v Cuisia

Presidential chief legal counsel Salvador Panelo—in a controlled interview on Tuesday that the Palace called a “tête-à-tête”—and Duterte, said the new argument is supported by the Supreme Court decison in Constantino v Cuisia, which dealt with the authority of Finance Secretary Ramon Del Rosario and other Finance officials toa ct on behalf of President Gloria Macapagal-Arroyo.

It turned out that Panelo only carefully picked out a phrase to support this claim. He quoted: “Nevertheless, there are powers vested in the President by the Constitution which may not be delegated to or exercised by an agent or alter ego of the President.”

Petitioners in the said case questioned a president’s delegation of power to the secretary of Finance. The Court, in the end, upheld the government act.

A lawyer and law professor familiar with the case characterized Panelo's citing of the case as an "ancient trick of lawyers to cherry pick passages from cases." The lawyer said that it is easier now to detect and check similar tricks because cases and decisions are more readily available online.

"This misreading was so fundamental you shouldn’t have passed the bar if you genuinely thought the case meant what [Panelo] said," the lawyer, who asked to remain unnamed for safety and employment reasons, also said.

Meanwhile, a government official who agreed to comment on Constantino v Cuisia for background said that there are “certain executive powers that by their very nature cannot be delegated, and because the constitution mandates that the president himself act in person, such as grant of executive clemency.”

“You cannot trivialize this process by delegating its approval to a mere alter ego,” the official added.

Part of Constantino v Cuisia also reads: “There are certain presidential powers which arise out of exceptional circumstances, and if exercised, would involve the suspension of fundamental freedoms, or at least call for the supersedence of executive prerogatives over those exercised by co-equal branches of government.”

Among those powers are:

• declaration on martial law
• suspension of the writ of habeas corpus
• grant of pardon

These powers “fall within this special class that demands the exclusive exercise by the president of the constitutionally vested power.”

“The list is by no means exclusive, but there must be a showing that the executive power in question is of similar gravitas and exceptional import,” the decision further read.

New argument has no effect on petition at SC

While the government is sticking with its new "alter ego" argument, that will have no bearing on Trillanes' petition at the Supreme Court.

Law expert Florin Hilbay, a former solicitor general, stressed that the SC cannot appreciate, or consider, this new argument since it is not in the text of the proclamation being assailed in the petition.

“The SC doesn’t give jurisdiction to tackle a new issue that’s outside Proclamation 572,” Hilbay said in a text message.

The government’s defense also goes against constitutional law, said the former solicitor general.

“The argument...is not only incompatible with the basic rule in constitutional law that the act of an alter ego is the act of the president but also not found in Proclamation 572,” he added.

Hilbay also warned that this new theory is “dangerous to all previous grantees of amnesty whose certificates were not signed by the president.”

READ: Trillanes amnesty case impacts government's peace process, Hilbay says

The proclamation and the petition so far

Duterte’s proclamation stated that the amnesty granted to Trillanes is “void ab initio” or void from the beginning since the ex-mutineer failed to comply with the requirements.

Trillanes was quick to say that he applied for amnesty, the form for which included a general admission of guilt. Documents from the Department of National Defense as well as numerous news reports at the time of his filing support his claim.

He raised this to the SC, in a petition for certiorari, but the tribunal said the issue is best left to courts that try facts: local courts, and at some point, the Court of Appeals.

The SC is not a trier of fact but the arbiter of laws.

While the SC did not issue a TRO as Trillanes requested, it did not junk the petition assailing the constitutionality of Proclamation 572. The SC has ordered the respondents, who are all government officials, to comment on Trillanes’ petition in 10 days.

Meanwhile, attention will now be turned to whether the local courts will issue arrest warrants in cases that court decisions indicate have already been dismissed.

Justice Secretary Menardo Guevarra said the local court judges may take into consideration Proclamation 572 in tackling his department’s motion for the issuance of warrants. Hearings have been set on September 13 and 14, respectively.

Should the cases be reopened, state prosecutors may be able to present new evidence—even outside the text of Proclamation 572—to bolster their claim.