FALSE: Duterte says Gazmin 'didn't have authority to give Trillanes amnesty'

President Aquino granted the amnesty through Proclamation Number 75. The defense department was only assigned to process applications.

Rappler.com

12:7:5pm September 11, 2018

8:39:21am September 12, 2018

Claim: The amnesty granted to Senator Antonio Trillanes IV was "invalid" because the amnesty document was signed not by President Benigno Aquino III but by then-Department of National Defense (DND) secretary Voltaire Gazmin.

President Rodrigo Duterte himself claimed that Gazmin is liable for “usurpation of authority” for signing the amnesty paper of Trillanes.

Duterte reiterated in a tête-à-tête with his Chief Legal Counsel Salvador Panelo on Tuesday, September 11, that the Aquino administration’s procedure in granting Trillanes amnesty was "wrong" since it was Gazmin who granted Trillanes amnesty and signed the paper.

The Facebook page “Thinking Minds” also posted on September 9 a meme showing “facts” regarding the revocation of Trillanes’ amnesty which includes the following:

Aquino "himself did not sign the Amnesty Certificate.”

“The Constitutional power of Amnesty rests in the presidency and there is no precedent or basis for delegation.”

“No proclamation, authority, decree, or law exists, where Noynoy delegated the authority to Gazmin.” 

As of September 11, the post has garnered at least 1,000 reactions, 37 comments, and 611 shares.

Rating: FALSE

The facts: Gazmin only signed on behalf of President Benigno Aquino III, who granted amnesty to the senator and his fellow mutineers.

In Proclamation Number 75 – signed in November 2010 and concurred in by Congress via Concurrent Resolution Number 4 the following month – Gazmin as then-defense secretary was only assigned to “receive and process” amnesty applications and determine whether they are entitled to Aquino's amnesty grant.

Proclamation Number 75 also stated that final decisions on amnesty applications by the DND are “appealable” to the Office of the President.

According to constitutional law professor Dante Gatmaytan, Aquino "never delegated the power to grant amnesty to any of his subordinates." He added that Gazmin only signed Trillanes' amnesty papers "on behalf of the President" and "never assumed any power that belongs to the president." 

"The Constitution did not say he has to sign everything personally," he emphasized. 

Separately, in a Facebook post, constitutional law professor Tony La Viña said, "There is a difference between granting amnesty done through proclamation, which only the President can sign and concurred in by Congress, and the availing of amnesty through an administrative process, which is always delegated to a responsible official." (READ: [ANALYSIS] Voiding Trillanes' amnesty: Illegal, unwise, immoral)

Meanwhile, during the tête-à-tête, Panelo read a part of the Supreme Court decision in Constantino vs. Cuisia to argue that some presidential powers cannot be delegated:

These distinctions hold true to this day. 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. The declaration of martial law, the suspension of the writ of habeas corpus, and the exercise of the pardoning power notwithstanding the judicial determination of guilt of the accused, all 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.

Gatmaytan said this part of the SC decision is "not the ratio of the case" and "is taken out of context."

"The Supreme Court was still laying out the law at that point. In the end, it held that the [Finance Secretary who is a respondent in the case] did not do anything wrong. The case is not even about signatures," he said.

In addition, lawyer and former Aquino spokesperson Edwin Lacierda told Rappler that the presidential powers mentioned in Constantino vs. Cuisia were "personal, unilateral and exclusive actions by the president."

Lacierda said, "You don’t need congressional concurrence to declare martial law or suspend the writ of habeas corpus." Congressional review, he said, is done "subsequent to" or after the imposition of martial law or suspension of the writ.

"But amnesty, which is also personally exercised, is not unilateral and exclusive. For it to be valid, congressional concurrence of both houses are required," he argued. "In addition, applying the logic of Constantino, amnesty does not supplant fundamental freedoms like martial law or suspending the writ." (READ: FAST FACTS: What is amnesty?)

Even Honorio Azcueta, the head of the DND Ad Hoc Amnesty Committee, said that the grant of amnesty to Trillanes is valid. It was Azcueta who made the recommendation of the approval of mutineers' amnesty application with Secretary Gazmin, as reflected in the committee's Resolution Number 2 in January 2011.

Here are the relevant parts of Proclamation No. 75 regarding this claim:

NOW, THEREFORE, I, BENIGNO S. AQUINO III, President of the Philippines, by virtue of the powers vested in me by Section 19, Article VII of the Philippine Constitution, do hereby DECLARE and PROCLAIM:

SECTION 1. Grant of Amnesty. – Amnesty is hereby granted to all active and former personnel of the AFP and PNP as well as their supporters who have or may have committed crimes punishable under the Revised Penal Code, the Articles of War or other laws in connection with, in relation or incident to the July 27, 2003 Oakwood Mutiny, the February 2006 Marines Stand-Off and the November 29, 2007 Manila Peninsula Incident who shall apply therefor; Provided that amnesty shall not cover rape, acts of torture, crimes against chastity and other crimes committed for personal ends.

SECTION 2. Where to Apply. – The concerned AFP and PNP personnel and their supporters may apply for amnesty under this Proclamation with the ad hoc committee Department of National Defense (DND) which is hereby tasked with receiving and processing applications – including oppositions thereto, if any – for amnesty pursuant to this proclamation and determining whether the applicants are entitled to amnesty pursuant to this proclamation. The final decisions or determination of the DND shall be appealable to the Office of the President by any party to the application. The decision, however, shall be immediately executory even if appealed.

Miguel Imperial and Michael Bueza/Rappler.com

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