Module 7
Pardon and other Forms of Executive Clemency
Pardon
Section 19, Article VII of the 1987 Constitution:
"Except in cases of impeachment or as otherwise provided in this Constitution, the
President may grant reprieve, 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”
Pardon, concept and definition
Pardon is a form of executive clemency which is exercised by the Chief Executive It is
an act of grace and the recipient of pardon is entitled to it is as a matter of right. The exercise of
pardon is vested in the executive, is discretionary and is not subject to review or judicial notice
by the court. Neither does the Legislative Branch of Government have the right to establish
condition nor provide procedures for the exercise of the same Hence. it is vulnerable for abuse
by the executive.
Pardon begun from the Pre-Christian Era. In fact the Holy Bible contains an allusion
where a criminal was released and pardoned by the king at the time Christ was crucified. The
exercise of Pardoning Power has always been vested in the hands of executive branch of the
government whether a king, queen, president or governor.
In England, pardon developed out of the conflict between the King and the Nobles who
threatened his power. Pardon was applied to members of the Royal family who committed
crimes, and occasionally to those convicted of offenses against the Royal Power. It was the
general view that the pardoning power was the exclusive prerogative of the King.
In the United States, pardon among early American colonies was a carry-over of English
practice. The Pardoning power was exercised by the Royal Governor through the power
delegated by the King. After the declaration of independence, the Federal and State
Constitutions vested the pardoning power on the President of the United States and the
Governors in Federal and State cases respectively.
Is the Pardoning Power of the President Absolute?
No The Constitution itself provides for limitations to wit
1. Pardon cannot be granted in cases of impeachment (Section 19, Article VII of the
1987 Constitution). In a very strict sense, an impeachment proceeding judicial
proceeding neither criminal prosecution and therefore beyond the ambit is not of
Pandoning Power. But when the government official is already impeached from his office
and latter on charged and convicted criminally in an ordinary criminal action, the
President may extend pardon to him
2. No Pardon can be granted for violation of any election laws, rule and regulation
without the favorable recommendation of the Commission on Election (Section 5,
Article IX (C) This provision is a good guard for the President in exercising this power in
favor to her political party mates who violated election laws for her to win the presidency
Under Section 5 of the General Guidelines for Recommending Executive Clemency
which is approved and released by the Department of Justice on June 26, 2003 provides among
other that
"The Board of Pardons and Parole shall refer matters pertaining to executive clemency for
comment and recommendation as follows:
1. To the Commission on Elections, if it involves violation of election laws, rules and
regulation.
2. To the Secretary of National Defense and Secretary of Interior and Local Government. if
it involves crimes against national security or public order or the law of nations, and
3. To the Department of Foreign Affairs, if the prisoner is an alien.
It is worth to note that in the cases of number 2 and 3, the President may disregard
these because it is not belong to the Constitutional limitations in exercising pardon
3. Pardon can be granted only after conviction by final judgment. There is no room for
pardon when the case has not yet reached its finality. In the case of former President
Estrada, his appeal from the Judgment of Sandiganbayan was withdrawn to make it final
and for him to avail the privilege of pardon.
4. Pardon must yield to the Doctrine of Separation of Powers. A pardon cannot be
extended to a person convicted of legislative contempt, as this would violate said
doctrine, or of civil contempt since this would involve the benefit not of state itself but of
the litigant whose nights have been violated by the person declared in contempt
It is also well settled that pardon cannot also be extended for the purpose of absolving
the pardonee of civil liability, including judicial costs, since again, the interest that is
remitted does not belong to the State but to the private litigant. Pardon also will not
restore offices forfeited.
Two (2) Kinds of Pardon
There are two kinds of pardon, the absolute and pardon. An absolute pardon is one
extended without any conditions or strings attached, whereas a conditional pardon is one under
which the convict is oblige to follow certain conditions.
Where the pardon is absolute the convicted person has no option at all and must accept
it whether he likes it or not. His consent to absolute pardon is not indispensable hence, it is valid
upon issuance
Whereas, in the case of conditional pardon the convicted person has the right to reject or
refuse the pardon if he feels that the condition imposed is not favorable on his part. This kind of
pardon is considers a contract between the pardoning authority and the pardonee hence;
consent is indispensable for its validity.
Purposes of absolute pardon
1. To do away with miscarriage of justice
2. To keep punishment abreast with the current philosophy, concept or practice in the
administration of justice. have already served
3. To restore full political and civil rights of the persons who their sentence and have waited
the prescribed period.
4. To avoid political crisis or tumultuous political situation
Board of Pardons and Parole (BPP)
The Board of Pardons and Parole is the administrative arm of the President of the
Philippines in the exercise of his constitutional power to grant pardon.
The BPP is composed of seven (7) members all appointed by the president with the
Secretary of Justice as acting chairman. However, in practice, one of the undersecretaries of
Justice is serving as Acting Chairman. The law requires that the six board members should
include a sociologist, a clergyman, an educator, a lawyer, a penologist, and at least one (1) is a
woman.
How to avail the privilege of conditional pardon?
To avail of this privilege, a qualified inmate, his family or relatives, or upon
recommendation of prison authorities will file a petition for conditional pardon addressed to the
President. The request will be forwarded to the Board of Pardons and Parole, which will process
the same before making their appropriate actions.
Factors to be considered by the Board of Pardons and Parole in recommending pardons
to the President
In acting on petitions for pardon, the BPP shall consider, among others, the following:
1. age of the petitioner;
2. the gravity of the offense;
3. the manner in which it was committed; and
4. the institutional behavior or conduct and previous criminal record, if any of the petitioner.
However, the BPP may consider a petition for absolute pardon even before the lapse of the
periods provided by the guidelines, in special cases such as when the petitioner is seeking
reinstatement in the government service, needs to go abroad to undergo medical treatment
which is not available in the country, will take government or Bar examination or is immigrating.
Extraordinary Circumstances
The Board shall recommend to the President the grant of executive clemency when any
of the following extraordinary circumstances are present:
a) The trial court or appellate court in its decision recommended the grant of executive
clemency for the inmate;
b) Under the peculiar circumstances of the case, the penalty imposed is too harsh
compared to the crime committed;
c) Evidence which the court failed to consider, before conviction which would have
justified an acquittal of the accused;
d) Inmates who were over fifteen (15) years but under eighteen (18) years of age at the
time of the commission of the offense;
e) Inmates who are seventy (70) years old and above whose continued imprisonment is
inimical to their health as recommended by a physician of the Bureau of Corrections
Hospital and certified under oath by a physician designated by the Department of
Health;
f) Inmates who suffer from serious, contagious or life-threatening illness disease or
with severe physical disability such as those who are totally blind, paralyzed,
bedridden, etc., as recommended by a physician of the Bureau of Corrections
Hospital and certified under oath by a physician designated by the Department of
Health;
g) Alien inmates where diplomatic considerations and amity among nations necessitate
review, and
h) Such other similar or analogous circumstances whenever the interest of justice will
be served thereby."
Other circumstances
When none of the extraordinary circumstances enumerated in Section 3 exist, the Board
may nonetheless review and/or recommend to the President the grant of executive clemency to
an inmate provided the inmate meets the following minimum requirements of imprisonment:
A. For Commutation of Sentence, the inmate should have served
a) At least one-third (1/3) of the definite or aggregate prison terms;
b) At least one-half (1/2) of the minimum of the indeterminate prison term or aggregate
minimum of the indeterminate prison terms;
c) At least ten (10) years for inmates sentenced to one (1) reclusion perpetua or one (1)
life imprisonment, for crimes/offenses not punished under Republic Act No 7659 and
other special laws;
d) At least thirteen (13) years for inmates whose indeterminate and/or definite prison
terms were adjusted to a definite prison term of forty (40) years in accordance with
the provisions of Article 70 of the Revised Penal Code as amended;
e) At least fifteen (15) years for inmates convicted of heinous crimes/offenses as
defined in Republic Act No 7659 or other special laws, committed on or after January
1. 1994 and sentenced to one (1) reclusion perpetua or one (1) life imprisonment;
f) At least eighteen (18) years for inmates convicted and sentenced to reclusion
perpetua or life imprisonment for violation of Republic Act No. 6425, as amended,
otherwise known as "The Dangerous Drugs Act of 1972" or Republic Act No. 9165
also known as "The Comprehensive Dangerous Drugs Act of 2002" and for
kidnapping for ransom or violation of the laws on terrorism, plunder and transnational
crimes;
g) At least twenty (20) years for inmates sentenced to two (2) or more reclusion
perpetua or life imprisonment even if their sentences were adjusted to a definite
prison term of forty (40) years in accordance with the provisions of Article 70 of the
Revised Penal Code, as amended;
h) At least twenty-five (25) years for inmates originally sentenced to death penalty but
which was automatically reduced or commuted to reclusion perpetua or life
imprisonment.
B. For Conditional Pardon, an inmate should have served at least one-half of the
maximum of the original indeterminate and/or definite prison term."
Notice to the Offended Party
In all cases when an inmate is being considered for executive clemency, the Board shall
notify the offended party or, in the event that the offended party is unavailable for comment or
otherwise cannot be located, the immediate relatives of the offended party Said persons shall
be given thirty (30) days from notice to comment on whether or not executive clemency may be
granted to an inmate Provided that, in matters of extreme urgency or when the interest of justice
will be served thereby, such notice may be waived or dispensed with by the Board. In such a
case, the Board shall explain the reason for the waiver of such notice in the Board resolution
recommending executive clemency.
Publication of Names of Those Being Considered for Executive Clemency
The Board shall cause the publication once in a newspaper of national circulation the
names of inmates who are being considered for executive clemency. Provided however, that in
cases of those convicted of offenses punished with reclusion perpetua or life imprisonment by
reason of Republic Act No. 9346, publication shall be once a week for three (3) consecutive
weeks.
Any interested party may send to the Board written objections/comments information
relevant to the cases of inmates being considered for executive clemency not later than thirty
(30) days from date of publication.
Provided that, in matters of extreme urgency or when the interest of justice will be
served thereby, above publication may be waived or dispensed with. In such publication, the
Board resolution recommending executive clemency.
When the pardon grantee fails to comply with the conditions of pardons
In case of violation of any provisions of the conditional pardon, the pardon itself is
deemed invalidated and the pardonee may be either recommitted by the President under the
Administrative Code or prosecuted for violation of conditional pardon under Article 159 of the
Revised Penal Code.
Under the Revised Penal Code, the Penalty of prision correctional in its minimum period
shall be imposed upon the convict, except when the penalty remitted is higher than six years, in
which event shall serve the unexpired portion of his original sentence.
Revocation of conditional pardon by the President shall not to be reviewed by court
The determination of violation of conditional pardon rests exclusively in the sound
judgment of the Chief Executive and the courts will not interfere by way of review with any of its
findings (Espuelas v. Prov. Warden of Bohol, 108 PHIL 353)
Legal Effect of Pardon
The legal effect of pardon is to restore not only the convict's liberty but also his civil and
political rights. However, in the case of Monsanto v Factoran (170 SCRA 1901 the Supreme
Court declares that "pardon does not ipso facto restore a convicted felon to public office
necessarily relinquished or forfeited by reason of the conviction although such pardon
undoubtedly restores his eligibility for appointment to that office"
Amnesty
The act of an authority (as a government) by which pardon is granted to a large group of
individuals a sovereign act of oblivion or forgetfulness (from Greek amnestia, “forgetfulness”)
granted by a government, especially to a group of persons who are guilty of (usually political)
crimes in the past It is often conditional upon the group's return to obedience and duty within a
prescribed period ([Link]
Pardon Amnesty
Pardon is granted by the Chief Executive and It is the proclamation of the Chief Executive
therefore it is a private act which must be with the concurrence of the Congress, hence
pleaded and proved by the person pardoned it is a public act which the court should take
because the courts take no notice thereof judicial notice
It can only be granted after conviction Amnesty can be granted before or after the
institution of the criminal prosecution and
sometimes after conviction
It is granted to individual Granted to classes of persons or
communities who may be guilty of political
offenses
Pardon looks backward and relieves the Amnesty looks backward and abolishes and
offender from the consequences of an puts into oblivion the offense itself. it so
offense of which he has been convicted. It overlooks and obliterates the offense with
abolishes or forgives the punishment, and for which he is charge that the person released
that reason it does not work the restoration of by amnesty stands before the law precisely
the rights to hold public office or the right of as though he had committed no offense.
suffrage, unless such rights be expressly
restored by the terms of the pardon, and it in
no case exempts the offender from payment
of the civil indemnity imposed upon him by
the sentence
Source Suarez R.A. Political Law Reviewer 2002, citing Barrioquinto vs. Fernandez (82 Phil.
642)
Commutation of Sentence
The reduction of a sentence for a criminal act by action of the executive head of the
government. Like pardon, commutation of sentence is a matter of grace, not of right; The
commutation, hence, may be granted on condition that the criminal observe certain is
distinguished from pardon, however, in that the conviction of crime is not nullified. restrictions for
the balance of his original sentence Many states have statutes providing for commutation of
sentence as a reward for good conduct during imprisonment. Once earned the commutation
becomes a matter of right and may be enforced by court action.
([Link]
Reprieve
The act of postponing the enforcement of a sentence, particularly a death sentence to
allow an appeal
Remit fines and forfeitures
Prevents the collection of fines or the confiscation of forfeited property; it canno have the
effect of returning property which has been vested in third parties or money already in the public
treasury