LIST: False claims of Duterte, Panelo about legal issues on Trillanes amnesty

President Duterte holds a one-and-a-half-hour tête-à-tête with Chief Presidential Legal Counsel Salvador Panelo, and rants against Senator Antonio Trillanes IV

Lian Buan

1:40:5pm September 11, 2018

5:52:47am September 12, 2018

LEGAL CLAIMS. President Rodrigo Duterte and Chief Presidential Legal Counsel Salvador Panelo make false claims about the issue of the Trillanes amnesty during their chat on September 11, 2018. Screenshot from PTV4

MANILA, Philippines – President Rodrigo Duterte expectedly used his scheduled nation address on Tuesday, September 11 – later reformatted into a tête-à-tête – to fire off more accusations against Senator Antonio Trillanes IV and justify why it was legal for him to void an 8-year-old amnesty.

But in doing so, Duterte and the sole interviewer, Chief Presidential Legal Counsel Salvador Panelo, made some false claims about the legal issues surrounding it.

Panelo started off by asking Duterte about the President supposedly “silencing his critics.”

CLAIM: “I have yet to sign anything ordering the arrest or the silencing of anybody in this government, especially the critics,” Duterte responded.

FACT: Duterte signed on August 31, 2018, Proclamation No. 572 voiding Trillanes’ amnesty.

At the end of the proclamation, Duterte said: “The Armed Forces of the Philippines and the Philippine National Police are ordered (emphasis ours) to employ all lawful means to apprehend former LTSG Antonio Trillanes so that he can be recommitted to the detention facility where he had been incarcerated for him to stand trial for the crimes he is charged with.”

Duterte would eventually backtrack from this directive, and say he is ruling out a military arrest and would instead defer to the courts.

But even despite a Supreme Court resolution making it clear that Trillanes cannot be arrested without a warrant, Presidential Spokesperson Harry Roque still maintained on Tuesday that the military can do a warrantless arrest if it wants to.

“Hindi po ibig sabihin ‘yun pero kung gusto, puwede. Pero hindi po sinasabi na gagawin na. Wala nang balakid kung gustong arestuhin si Senator Trillanes pero hindi po sinsabi na ‘yun na ang mangyayari,” Roque said.

(I’m not saying that it will happen, but they can do it if they want to. But I’m not saying they will do it. But there’s no stopping the arrest of Trillanes, but we’re not saying that we’re going to do it.)

Panelo then discussed the legality of Proclamation No. 572 where Duterte unilaterally voided the amnesty on grounds of Trillanes’ alleged failure to file an official application form.

CLAIM: “I would rise and fall on the proposition that only the President himself can physically be doing the pardoning and granting the amnesty. It’s a constitutional mandate, mabigat ‘yan (that’s a big deal)…Any lawyer will always agree that (pardoning or granting amnesty) is exclusive to the president of the Republic of the Philippines,” said Duterte.

FACT: It is very clear in Section 19, Article VII of the Constitution that the president “shall also have the power to grant amnesty with the concurrence of a majority of all the Members of Congress.”

It is the revocation or the voiding of the amnesty that doesn’t have a clear textual basis in the Constitution. But the act of granting amnesty very clearly requires the concurrence of a majority of all members of Congress, and is not exclusive to the president, as Duterte claims.

Duterte mixed pardon and amnesty in the same thought, possibly because they’re both under Section 19.

Under the provision, the president ”may grant reprieves, commutations and pardons” without an additional requirement, and it is exclusive to the president. But granting amnesty was clearly differentiated in the law. (READ: Trillanes amnesty revocation: ‘Duterte reinventing the law’)

Panelo and Duterte then discussed the grounds why Trillanes’ amnesty is null and void. It was a theory floated over the weekend, and which the two men – both lawyers – reiterated during the tête-à-tête.

In the new theory, Duterte said that former defense secretary Voltaire Gazmin committed usurpation of authority when he signed Trillanes’ amnesty document, when it should have been former president Benigno “Noynoy” Aquino III. (READ: FALSE: Duterte says Gazmin 'didn't have authority to give Trillanes amnesty')

CLAIM: “In other words, Mr President, even assuming that Trillanes was compliant – compliant [with] the mandatory requirements of applying, under oath…” Panelo began to ask Duterte.

Duterte said: “Wala na ako doon. (I’m not concerned with that anymore).”

“Wala pa rin doon sapagkat lumalabas ngayon na talagang nullity, complete nullity (That’s no longer the concern because it turned out it’s a nullity, a complete nullity),” said Panelo.

FACT: The Gazmin theory was never mentioned in Proclamation No. 572, the legal document that took effect upon publication on September 4, and which voided Trillanes’ amnesty.

All that the proclamation cited was the alleged failure of Trillanes to file an application form that contains the additional requirement of expressly admitting guilt.

Can Duterte set aside the arguments on compliance and use the Gazmin theory moving forward?

“The validity of the Proclamation revoking the amnesty should only be based on the grounds or premises of the Proclamation itself. That theory is an extraneous matter or evidence aliunde that is an afterthought, if not scapegoating,” said Edre Olalia, President of the National Union of Peoples’ Lawyers (NUPL)

Constitutional Law professor Tony La Viña said that if Duterte wants to use the Gazmin theory, then he must amend the proclamation first.

Can Solicitor General Jose Calida, the executive branch’s lawyer, just add the Gazmin theory in his reply to the Supreme Court to justify the validity of the proclamation?

“Well, he can. But the SC should not address it because it is not the ground for nullifying the amnesty,” La Viña said.

To further support their Gazmin theory, Panelo cited the Supreme Court decision on Constantino vs Cuisia, a case in 2005 where the group Freedom from Debt Coalition sought to nullify agreements that Philippine officials entered into with foreign creditor governments.

One of the grounds of the petitioners is that the respondents, the Central Bank Governor and the Secretary of Finance among others, could not enter into agreements because that power exclusively belongs to the president.

Panelo read this portion from the decision to highlight their argument that Gazmin’s act of signing the amnesty document is prohibited:  “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.”

CLAIM: “In fact, Mr President, your doctrine – you know, the doctrine that you are initiating now finds basis in the Supreme Court decision. In the case of Constantino vs Cuisia G.R. No. 106064 promulgated on October 13, 2005,” said Panelo.

Duterte did not dispute.

FACT: Constantino vs Cuisia cannot become the “basis” of the claim that Gazmin committed usurpation of authority because the Supreme Court decided that case in a way that does not support their argument at all.

“I don't know why Cuisia was cited because in that case, the Supreme Court held that presidential prerogative may be exercised by the President's alter ego, who in this case is the Secretary of Finance,” said Constitutional Law professor Dan Gatmaytan.

Gatmaytan added that the quote that Panelo chose to cite was “taken out of context as the Supreme Court was still laying out the law at that point.”

Panelo and Duterte are insisting that Gazmin as the president’s alter ego usurped authority by signing the amnesty document of Trillanes, and therefore the amnesty should be void.

“You cannot delegate that power to a subordinate, an alter ego,” said Duterte.

But in Constantino vs Cuisia, the SC actually upheld the “governmental acts” of the president’s alter egos. 

If you read beyond Panelo’s chosen quotes, the SC would actually eventually say that because the petitioners could not show that the president “countermanded” or revoked the acts of her alter egos, “the said acts carried presidential approval.”

The dispositive portion reads: “We find that petitioners have not sufficiently established any basis for the Court to declare the acts of respondents as unconstitutional." 

Duterte and Panelo eventually moved on from the topic, leading to a rare outburst from the President against the military, and a discussion about the option to go for the ancient cashless system of barter trade to curb inflation. – Rappler.com

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Summary: What Duterte said during Q and A with Panelo

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

Workers' strikes result of Duterte's policy failure – labor groups

Duterte mentions 'Trillanes' 20 times in Q and A