[ANALYSIS] Trillanes amnesty and lessons from Argentina

As a pardon accorded to a class of persons, amnesty was used in England during its civil war. Both royalists loyal to King Charles II and rebels led by Cromwell were accorded amnesty thru “Acts of Oblivion” passed by Parliament, as amnesty was referred to at that time.

Later, during the American civil war fought over the issue of slavery, amnesty figured prominently in American jurisprudence when the Supreme Court grappled with the amnesty bestowed by Abraham Lincoln on enemy Confederate soldiers despite heavy congressional opposition.  

As upheld by the US Supreme Court, the Lincoln amnesty was founded mainly on the overriding rationale of “restoring the tranquillity of the Commonwealth.” A lawyer by profession, Lincoln contended that once a person had taken an oath of allegiance as a condition for amnesty, the revocation of such amnesty is an “astounding breach of faith.”

Thus, the Supreme Court nullified congressional measures passed against Confederate soldiers.  

Juntas’ tool

Amnesties became a feature of post-democratic transition governments in Latin American countries. 

In the transition from military juntas to democracy, amnesties posed a legal stumbling block to criminal prosecution against the juntas. Amnesty became the tool of choice of the juntas in imposing legal immunities against human rights atrocities. 

Emerging democratic governments needed to remove these amnesties in order to launch criminal prosecutions.   

The case of Argentina is an instructive legal and political precedent. 

When Raul Alfonsin, who was a lawyer by profession and dubbed as the father of modern Argentinian democracy, was elected president, his earliest act was to revoke the amnesty self-imposed by the military junta. (Alfonsin died in 2009.)

As a president exercising the executive power of clemency, Alfonsin could have resorted to a unilateral exercise of such power, but he did not. Instead, he requested the legislature to assent to his amnesty revocation, which the legislature did.

As a consequence of then-president Alfonsin’s action, with the concurrence of the Argentinian legislature, the “trial of the junta” in Argentina went into legal operation, leading ultimately to the historic conviction of 5 top junta military leaders in 1985.  

Alfonsin’s revocation of the amnesty arose from the context of the “dirty war” resulting in human rights atrocities. The amnesty was self-imposed by the military junta to erect a fortress of immunity against any  potential criminal accountability, investigation and prosecution for human rights atrocities.  

As a measure to combat impunity, amnesty had to be taken out, as it was bestowed by a totalitarian regime, so argued President Alfonsin, in order that criminal prosecution against human rights atrocities could proceed. 

The “trial of the junta” is considered to be the first such significant criminal prosecution after the Nuremberg trial and judgment.

Lesson for Philippines

The Argentinian experience in the 1980s is important and instructive in relation to the Trillanes amnesty revocation, because it is a political and legal precedent for the constitutional necessity or prerequisite for a legislative assent or approval for an executive revocation of an amnesty.  

It was mainly contended by the late president Alfonsin that the self-imposed amnesty was undemocratic, but still, he did not unilaterally resort to his executive power of clemency. He accepted it to be necessary to secure legislative assent for it.     

In the Trillanes amnesty revocation, the context may be different. 

The amnesty was democratically granted by President Aquino and concurred in by Congress pursuant to the Constitution. The amnesty grant was not designed to immunize the rebellious Magdalo from human rights atrocities.  

In Argentina, the previous grant of amnesty was self-imposed by the military junta without any congressional imprimatur.In the case of Senator Trillanes, congressional assent was actually given under the Constitution; therefore, it is with more cogent reason that such congressional assent is also essential to a revocation. 

Congressional approval

The Argentinian experience is legally relevant in the sense that an executive revocation of a previous amnesty, whatever may be the context of such amnesty grant, cannot be done unilaterally, but requires legislative approval for it.  

In the Lincoln paradigm, the purported revocation by President Duterte of Senator Trillanes’ amnesty can be considered as a measure to “restore the tranquillity of the Commonwealth,” the revocation of which is an “astounding breach of faith” that should not be countenanced by the Supreme Court. As compared with the Argentinian experience, such revocation is legally incompatible with the historic precedent exemplified by President Alfonsin’s request for legislative assent for his revocation of an amnesty. 

The trivial revocation made by President Duterte is a ludicrous, pettifogging unilateral exercise of the executive power of clemency. There is no overriding constitutional and legal justification for the revocation, like the overarching need to remove a stumbling block to prosecute crimes against humanity in the case of Argentina. 

It is just a sinister, devious and criminal stratagem, in an astounding breach of faith, to achieve nothing but a despot’s tyrannical desire for revenge to imprison, if not a morbid pretext to kill, Senator Trillanes who is emerging to be a leading opposition figure and potential presidential timber. – Rappler.com