MANILA, Philippines – The buzz phrase these past two weeks in and out of legal circles is “void ab initio” or void from the start. This is in reference to the manner by which President Rodrigo Duterte seeks to nullify the 8-year-old amnesty given to Senator Antonio Trillanes IV in a still unsuccessful attempt to jail the President’s top critic.

Trillanes’ lead counsel Rey Robles petitioned the Supreme Court to declare Duterte’s Proclamation No. 527 invalid, saying that amnesty is a shared power between the president and Congress.

Robles said that if Duterte wants to void the amnesty, he must also first get the concurrence of the majority of Congress.

But amnesty aside, can a Philippine president declare anything void ab initio?

For retired Supreme Court Justice Vicente Mendoza, one of the country’s authorities in constitutional law, the simple answer is “no.”

“Only courts declare anything void, whether void ab initio or otherwise also known as voidable. That is a judicial function,” Mendoza told Rappler.

What is void ab initio?

Void ab initio has been compared to quo warranto (or “by what authority”) – the petition that declared Maria Lourdes Sereno to have never been qualified to be chief justice – on account of lack of integrity. This was established by her failure to file several years’ worth of Statements of Assets, Liabilities, and Net Worth (SALN) when she was just a law professor.

The difference between the two is that quo warranto has specific guidelines found in Rule 66 of the Rules of Court. Rule 66 lays down the conditions by which one can file a quo warranto petition to oust a sitting official.

“Void ab initio is more of a concept than an actual statute” said Dan Gatmaytan, constitutional law professor at the University of the Philippines (UP).

Void ab initio is a prominent concept in the Family Code, as the only way so far to terminate a marriage in the Philippines is through annulment by declaring it void ab initio or void from the start.

“Certain marriages may be void under the provisions of the Family Code, for example. But the parties in that marriage cannot declare their marriage void. Courts must make that declaration in the proper proceedings,” said Gatmaytan.

Void ab initio is also a common concept in business contracts.

“It happens when there is a defect in a contract. However, it is still the courts that declare something void,” Gatmaytan said.

Judicial power

Section 5, Article VIII of the 1987 Philippine Constitution says that the Supreme Court has jurisdiction over “all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation (emphasis ours), order, instruction, ordinance, or regulation is in question.”

Duterte’s Proclamation No. 572 declared void ab initio “the grant of amnesty to former LTSG Antonio Trillanes IV under Proclamation No. 75 because he did not comply with the minimum requirements to qualify under the Amnesty Proclamation.”

Mendoza said that if Duterte really wanted to declare Trillanes’ amnesty void ab initio, he should have gone to the courts first because it involves judicial power.

Robles mentioned that argument in the hearing at the Makati Regional Trial Court (RTC) on Friday, September 14.

“If they wanted to nullify the amnesty, they have to go through the proper process, it cannot be done by the mere stroke of a pen,” Robles told the court, as he added, “the President is not a judge.” (READ: LIST: False claims of Duterte, Panelo about legal issues on Trillanes amnesty)

DOJ’s position

Dragged to the center of the issue is the Department of Justice (DOJ), which was directed by Proclamation No. 572 to “pursue all criminal and administrative cases filed against” Trillanes.

Lead counsel for the DOJ is Acting Prosecutor General Richard Fadullon who does not believe that declaring something void ab initio is an exclusive judicial power.

“Hindi na kailangang humingi ka pa ng order to declare it void ab initio (You don’t need to ask for a court order to declare it void ab initio),” Fadullon said after the hearing on Friday.

Fadullon said that unless the Supreme Court declares Proclamation No. 572 unconstitutional, they are treating the amnesty void ab initio which, according to him, obliterated all of Trillanes’ rights as far as the case is concerned, particularly the right against double jeopardy.

The coup d’etat and rebellion charges filed against Trillanes, which the DOJ wants to reopen and use as basis to arrest the senator, have been dismissed way back in 2011 because of the amnesty.

“When you talk of something that is void ab initio, there is nothing that you even have to do, because you have no right that emanates from a ruling that is void,” Fadullon said as they urged the two Makati courts to “simply ignore” their dismissals of Trillanes’ cases.

Asked for his opinion on whether void ab initio is a blanket judicial power, Fadullon insisted that Duterte’s proclamation is valid as of this moment and so they must seek the arrest of the senator as directed.

“It’s not a question of whether it’s a presidential power or a judicial power, what we’re saying is that if we look at jurisprudence, a decision that is void ab initio creates no rights, it grants no rights, so with that in mind, what we’re saying is that if it is void, what should be the state? We go back to where we were before,” Fadullon said, referring to the live status of the cases before the allegedly void amnesty.

Once again, this is an issue about just how powerful presidential discretion is.

Duterte’s presidential discretion was put to a test on the issue of martial law in Mindanao. There he got the Supreme Court’s approval in a ruling that dissenter Justice Marvic Leonen described as “enabling the rise of an emboldened authoritarian.”

This is also the issue at play in the pending petition on Duterte’s withdrawal from the International Criminal Court (ICC).

The National Union of Peoples’ Lawyers (NUPL) has slammed the proclamation as Duterte reinventing the law. It said that if it persists, then “Duterte and his strongman state can practically do anything.” – Rappler.com