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The Society of Honor by Joe America

Is the Condonation Doctrine unconstitutional?


Posted by Joe America on June 25, 2015 98 Comments
Is the Condonation Doctrine unconstitutional?
And should the Supreme Court revisit its decision in G.R. L-11959?
By Yvonne
Much has been said about the condonation doctrine. This subject has come into public
awareness and intense scrutiny when Makati Mayor Jejomar Binay, Jr. invoked the
condonation doctrine to stop his suspension as ordered by the Ombudsman in connection
with the alleged overpricing of the Makati City Hall Parking building.
The Supreme Court first introduced the condonation doctrine into our jurisprudence in
the case of then Mayor Arturo Pascual vs. The Provincial Board of Nueva Ecija, G.R. L11959, in 1959. The Court stated that a reelected public official cannot be removed from
his position for an administrative misconduct committed during his prior term because his
reelection assumes that the people have forgiven him, and removing him from office
overrules the will of the people.
The word condonation has the same meaning as pardon, forgiveness, and clemency. In
this essay I will use the word condonation, or pardon, for textual simplicity. I posit the
following:
The condonation doctrine appears to be unconstitutional
1. It usurps the constitutional power of the President to grant pardon in administrative
cases in the Executive branch of government.
2. It contravenes Article II, Section 27 of the 1987 Constitution mandating that the State
shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.
The Supreme Court should revisit its decision on G.R. L-11959
I. The Court failed to recognize in its 1959 decision the constitutional the power of the
President to grant pardon in administrative cases, whose power is provided for as early as
in the 1935 Constitution.

II. It applied the condonation doctrine in a case where the prerequisite of prior conviction
did not exist in the case.
III. It used a weak interpretation of the condonation doctrine that is inconsistent with our
stated national principles and policies.
THE CONDONATION DOCTRINE SHOULD BE DECLARED
UNCONSTITUTIONAL
1. It usurps the constitutional power of the President to grant pardon in administrative
cases.
An underlying theory in the condonation doctrine is that when the people have elected a
man to office, it must be assumed that they did this with knowledge of his life and
character, and that they disregarded or forgave his faults or misconduct, if he had been
guilty of any.
But this underlying theory is contrary to the constitutional provision that the President,
not any parochial or local electorate, has the power to grant pardon in administrative
cases. Both the 1935 and 1987 Constitutions are clear: the power to grant pardon, under
the Executive Branch of government, is given to the President.
Article VII, Section 10 (6) of the 1935 Constitution states: The President shall have the
power to grant reprieves, commutations, and pardons, and remit fines and forfeitures,
after conviction, for all expenses except in case of impeachment, upon such conditions
and with such restrictions and limitations as he may deem proper to impose.
Article VII, Section 19 of the 1987 Constitution states that except in cases of
impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by
final judgment.
It was believed previously that the power of the President to grant pardon was limited to
criminal cases, and it is for this erroneous belief that the condonation doctrine in
administrative cases was introduced into our jurisprudence in 1959. But the power of the
President to grant pardon in both criminal and administrative cases has been affirmed by
the Supreme Court.
In Llamas vs. Orbos, G.R. 99031, on October 15, 1991, the Supreme Court ruled that the
President has the power also to grant pardon in administrative cases.
The Court declared: It is Our considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal cases, with much

more reason can she grant executive clemency in administrative cases, which are clearly
less serious than criminal offenses. A number of laws impliedly or expressly recognize
or support the exercise of the executive clemency in administrative cases. (Underlining
is mine.)
The ruling in Llamas vs. Orbos recognizing the constitutional power of the President to
grant pardon in administrative cases renders the condonation doctrine unconstitutional
because the doctrine erroneously grants that power to a parochial or local electorate.
Also, the condonation doctrine is badly flawed in that it assumes that pardon is granted
with reelection. A rule of law should be based on facts, not on a wrong assumption
more on this later.
Another serious flaw of the condonation doctrine is its assertion that the Court should
never remove a public officer for acts done prior to his present term of office because
to do otherwise would be to deprive the people of their right to elect their officers. This
assertion is flawed because of the rule on succession.
When the people exercise their right to elect their government officials they do so with
the knowledge of the rule on succession of elective officials. Thus when they elect a
mayor they also elect a vice-mayor with the knowledge and consent that the vice-mayor
may succeed the mayor in the event that he is suspended, removed, or incapacitated. In
the event that a mayor is suspended, the will of the people is not violated because they
also elected a vice-mayor who may assume the office of the mayor in such eventuality.
2. It violates Article II, Section 27 of the 1987 Constitution mandating that the State
shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption.
A conviction of administrative misconduct puts into question the honesty, damages the
reputation, and impairs the performance, of a public official. His continued stay in office,
or preventing his suspension, as allowed in the condonation doctrine, is contrary to a
positive and effective measure against graft and corruption.
The condonation doctrine has a dilatory effect in the prosecution of graft and corruption
as is very evident in the present case of Ombudsman versus Court of Appeals that is
being heard at the Supreme Court.
Indeed, unscrupulous politicians have used the condonation doctrine as a legal shield to
subvert the prosecution of graft and corruption.
THE COURT SHOULD REVISIT ITS DECISION IN G.R. L-11959

I. When the issue of administrative pardon was raised in Arturo Pascual vs. Provincial
Board of Nueva Ecija, in G.R. L-11959, in 1959, the Court failed to recognize the
constitutional power of the President to grant pardon in administrative cases.
It was not until Llamas vs. Orbos, G.R. 99031, on October 15, 1991 that the Court finally
recognized that presidential power. Yet the constitutional provisions from which the
Court based its decision are present in both the 1935 and 1987 Constitutions.
The failure of the Court to recognize that presidential power of pardon resulted in its
invocation of the condonation doctrine in addressing the issue of pardon in administrative
cases.
II. The Court used the condonation doctrine in the absence of prior conviction.
Using the condonation doctrine from American jurisprudence, the Supreme Court quoted
as follows:
The Court should never remove a public officer for acts done prior to his present term
of office. To do otherwise would be to deprive the people of their right to elect their
officers. When the people have elected a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they disregarded or forgave his
faults or misconduct, if he had been guilty of any. It is not for the court, by reason of such
faults or misconduct to practically overrule the will of the people.
The key element in the condonation doctrine is prior conviction if he had been guilty
of any.
It has been a widely held judicial principle that pardon can be given only after final
conviction.
This principle is consistent with the language of both the 1935 and 1987 Constitutions
declaring that conviction is a prerequisite of pardon.
Whereas the 1935 Constitution referred only to pardon after conviction, the 1987
Constitution clarified it to after conviction by final judgment. In Llamas vs. Orbos, the
Court also emphasized that pardon shall be granted after conviction by final judgment.
This makes more sense because a preliminary conviction can be appealed and can be
reversed on appeal.
In Arturo Pascual vs. Provincial Board of Nueva Ecija the Court erred by using the
condonation doctrine although Arturo Pascual had not yet been convicted by final
judgment.

III. The Court used a weak interpretation of the condonation doctrine that is inconsistent
with our stated national principles and policies.
The Supreme Court, itself, appeared to be uncertain on the condonation doctrine when it
wrote:
We now come to the main issue of the controversy the legality of disciplining an
elective municipal official for a wrongful act committed by him during his immediately
preceding term of office.
In the absence of any precedent in this jurisdiction, we have resorted to American
authorities. We found that cases on the matter are conflicting due in part, probably, to
differences in statutes and constitutional provisions, and also, in part, to a divergence of
views with respect to the question of whether the subsequent election or appointment
condones the prior misconduct.
The court noted that there was no precedent, that cases on the matter are conflicting,
and that there was a divergence of views. Yet the Court adapted a view with dubious
character as opposed to a view that is on stronger ground and is more consistent with our
national principles and policies.
An analysis of the condonation doctrine made by the Louisiana Law Review, Volume 4,
Number 1, November 1941, states:
A(n) issue presented was whether or not a public official might be removed for
misconduct in a prior term. Although the decisions in other states conflict on this
question, Louisiana has consistently held to the view which permits removal for
misconduct in a prior term. Some courts reason that by re-election the public has
condoned the fault of the official, whether such shortcomings were known or not; while
other tribunals reach the dubious conclusion that permitting a public official to be
removed for his misconduct in a prior term is depriving the citizenry of its sacred right of
selecting its own officials; and still other courts treat each term as a separate entity in
itself, permitting removal only for acts done within the current term.
The most serious objection to the theory of condonation of past offenses lies in the ever
present possibility that re-election may not constitute condonation either because the
facts were not known or because the election was corrupt.
[Such a hypothetical situation was fully developed in State ex rel. Timothy v. Howse, 134
Tenn. 67, 79, 80, 183 S.W. 510, 513 (1916)]
The Louisiana Law Review also states:

The rules adopted in the Jones case provide a definite check against misconduct by
public officials at all times since they throw open to investigation personal as well as
official misconduct and refuse to recognize any distinction with respect to the time when
the misconduct took place. [Stanley v. Jones, 2 So. (2d) 45 (La. 1941)]
The obvious divergent and conflicting judicial interpretations of the condonation doctrine
require that its interpretation must be reconciled with our national principles and policies,
and not be based on dubious conclusions.
The will of a parochial electorate is not an expression of the national will
A parochial electorate, such as the electorate of Makati, represents a parochial or local
interest. Its will expressed in the ballot box is not an expression of the national will; it
cannot grant pardon to a misconduct committed against a national administrative law, or
against the states declaration of principles and policies.
It is precisely for this fundamental reason why the power to pardon is the exclusive
province of the national leadership whose mandate and power emanate from the national
populace. In the case of the Executive Branch of government that power is given to the
President, with some exceptions as stated in the Constitution.
The condonation doctrine is invalid in a strong multi-party electoral system
The condonation doctrine has its history deeply rooted in American politics dominated by
a two-party system. In a two-party electoral system, the winning candidates almost
always receive majority of votes, hence the winners have clear and strong mandate from
the people. But the advent of multi-party system, such as in the Philippines, eroded the
dominance of majority votes and gave rise to plurality of votes.
Take for example the Vice-Mayoral election results in Caloocan in 2013. The five
candidates and their respective votes were: Asistio (27%), Varela (25%), Almeda (21%),
Malonzo (16%), and Yu (1%) 10% was cast either blank or invalid. Let us remove the
names in that election and assume that the winner was a reelectionist with prior
conviction of administrative misconduct. Was his reelection an expression of condonation
by the people of his misconduct? No, definitely not. Although it may be assumed that
27% of the electorate may have pardoned him by voting for his reelection, it may be
assumed also that 63% have not, and the sentiment of 10% was unknown.
Instead of assuming that the people condoned his misconduct, the opposite may be
assumed from the election results whereby a majority of 63% of the electorate rejected
him and considered him unfit for office by not reelecting him. This is a major flaw of the
condonation doctrine it is rooted on a false assumption that cannot be used as a basis of
law.

Clearly, winning an election and condoning misconduct are two separate and distinct acts
that cannot be inferred from each other. It is for this reason why the condonation doctrine
is invalid in political jurisdictions with strong multi-party electoral system where
candidates typically win by plurality of votes, and not necessarily by majority of votes.
In closing, it is high time for the Supreme Court to revisit its decision in G.R. L-11959,
and to declare the condonation doctrine unconstitutional. The Supreme Court may just
have the rare opportunity to do the right thing in the current case of Ombudsman versus
Court of Appeals/Binay.