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President whether or not a pardon should be granted to a convict, and that closely coordinates with the Office of the
President on matters of pardons and parole.
In these lights, when PGMA (as President and Head of the Executive Department to which the BPP belongs)
granted Erap executive clemency and used the words of the BPP rules and regulations, she raised the
inference that her grant was in the spirit in which the terms of the pardon are understood in the BPP rules.
Thus the pardon totally extinguished the criminal liability of ERAP, including the accessory penalties.
In my view, harmonization occurs under the Erap pardon by giving due recognition to the essentially plenary nature of the
President’s pardoning power under Section 19, Article VII of the Constitution, while giving effect to the RPC intent to make
clear in the terms of the pardon the intent to restore the convict’s rights to vote and to be voted upon, as a matter of form
that is satisfied by reference to the restoration of political rights that, as now understood internationally and domestically,
include the restoration of the right to vote and to be voted upon. Understood in this manner, the RPC provisions would not
be constitutionally infirm as they would not diminish the pardoning power of the President.
10. COMELEC DID NOT COMMIT GADALEJ in RELYING ON ITS 2010 DISQUALIFICATION RULINGS IN
DISMISSING THE INSTANT PETITION.
As narrated above, Erap’s 2010 presidential candidacy gave rise to three cases – the Pamatong, Pormento and Mary
Lou Estrada cases - all aimed at disqualifying him.
I disagree with J. Leonen. As I earlier pointed out, we must review the COMELEC’s decision using the standard of
grave abuse of discretion. None is present in this case the principle of res judicata, under either of its two
modes - conclusiveness of judgment or bar by prior judgment- applies in the present case.
Conclusiveness of Judgment:
The 4 cases relied on were all final and executory.
Identity of parties ERAP was defendant in al 4 cases. While petitioners not the same, they represented same
interest as citizens of voting age to disqualify ERAP. Thus they were substantially identical in the interests they
represent.
Identity of issues All the cases seeking to disqualify Erap from running hinged on his previous conviction and
on arguments characterizing his subsequent pardon to be merely conditional.
Bar by Prior Judgment: Res judicata through bar by prior judgment requires
Judgment be final COMELEC’s final rulings in the Pamatong, Pormento and Mary Lou Estrada petitions had
been made executory through the inclusion of Erap as a candidate not only as a President in the 2010 elections
but as Mayor in the 2013 elections.
Rendered by a court of competent jurisdiction COMELEC has jurisdiction under Sec 2, Art IX, 1987
Constitution
On the merits The matter of pardon was raised as a defense by Estrada and this was duly noted by the
COMELEC in its resolution. Even if it was not fully argued in Pormento and Mary Lou Estrada case, they were
fully argued, ruled upon in Pamatong. The 2 other cases shall be read as a recognition of final judgment in
Pamatong.
Identity of parties, subject matters, and causes of action decisions were in rem. A declaration of the
disqualification or qualification of a candidate binds the whole world as the final ruling of the COMELEC regarding
Erap’s perpetual absolute disqualification and pardon had already become conclusive. Substantial identity of
causes of action is permitted and the same is applicable in this case using the 2 tests of absence of inconsistency
test and same evidence test.
J. MENDOZA, concurring:
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This reality invites, if not bolsters, the application of the political question doctrine. The only weapon, which the Court
has freedom to wield, is the exercise of judicial power against a blatant violation of the Constitution.
J. LEONEN, dissenting;
1. The power to grant clemency is vested in the President under Article VII, Sec 19 of the 1987 Constitution. The
recognition that the power to grant clemency is lodged in the executive has been made since the earliest days of
Philippines as a republic. It “is founded on the recognition that human institutions are imperfect and that there are
infirmities, deficiencies or flaws in the administration of justice. The power exists as an instrument or means for correcting
these infirmities and also for mitigating whatever harshness might be generated by a too strict an application of the law.”
2. Pardon v. Amnesty
PARDON AMNESTY
granted by the Chief Executive and as such it is a private amnesty by Proclamation of the Chief Executive with the
act which must be pleaded and proved by the person concurrence of Congress, and it is a public act of which the
pardoned, because the courts take no notice thereof courts should take judicial notice.
granted to one after conviction granted to classes of persons or communities who may
be guilty of political offenses, generally before or after the
institution of the criminal prosecution and sometimes after
conviction
looks forward and relieves the offender form the looks backward and abolishes and puts into oblivion the
consequences of an offense of which he has been offense with which he is charged that the person released
convicted, that is, it abolishes or forgives the punishment, by amnesty stands before the law precisely as though he
and for that reason it does "not work the restoration of the had committed no offense.
rights to hold public office, or the right of suffrage, unless
such rights be expressly restored by the terms of the
pardon,"
Estrada asserts that pardon “blots out of existence the guilt, so that in the eye of the law the offender is as innocent as
if he had never committed the offence . . . it makes him, as it were, a new man, and gives him new credit and
capacity.” Estrada is in grave error for insisting on what he has dubbed as the “forgive-and-forget rule.”
Pardon is a private, though official, act of the executive. Proceeding from the power to execute laws, it merely
evinces the executive’s choice to decline from enforcing punishment so as to mollify penal misery.
Pardon does not erase the moral stain and the fact of conviction. It retains the law’s regard for a convict “as
more dangerous to society than one never
found guilty of a crime”; the convict remains “deserving of
punishment” though left unpunished
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clemency is a decision that is solely for the President to make. The court cannot review, much less preempt the
exercise of this power.
The 1987 Constitution’s recital of the instances when pardon may or may not be exercised and this court’s prior
recognition of clemency as an executive function notwithstanding, Articles 36 and 41 of the Revised Penal Code could
not be considered as abridging or diminishing the President’s right to extend clemency.
o Articles 36 and 41 do not reduce the coverage of the President’s pardoning power. At no point do they say
that the President may not grant pardon
Articles 36 and 41 refer only to requirements of convention or form. They only provide a procedural prescription.
They are not concerned with areas where or the instances when the President may grant pardon;; they are only
concerned with how he or she is to exercise such power so that no other governmental instrumentality needs to
intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes to include in the pardon the restoration of the
rights of suffrage and to hold public office, or the remission of the accessory penalty of perpetual absolute
disqualification, he or she should do so expressly.
Articles 36 and 41 only ask that the President state his or her intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains the power to make such restoration or remission, subject to
a prescription on the manner by which he or she is to state it.
Given the contrasting natures of, on the one hand, elective office as a public trust, and, on the other, pardon as a
private act, it “would not be asking too much” of the President to be unequivocal with his or her intentions on
restoring a convict’s right not just to vote, but more so, to be voted for elective public office.
NO EXPRESS REMISSION and/or RESTORATION; RELIANCE ON INFEENCE IS IMPROPER
Given the contrasting natures of, on the one hand, elective office as a public trust, and, on the other, pardon as a
private act, it “would not be asking too much” of the President to be unequivocal with his or her intentions on restoring
a convict’s right not just to vote, but more so, to be voted for elective public office.
This reliance on inference is precisely what the requirement of expressly stating the restoration or remission seeks to
avoid.
In any case, even if Estrada’s inferences and reliance on the characterization of the rights to vote and be voted for
elective public office as political rights is to be indulged, it does not follow that these specific rights have been restored
by the pardon’s generic restoration of civil and political rights.
Leonen thus discusses the ICCPR as distinguished from the IESCR, Karal Vasak’s conception of three generation of
human rights, and Simon v. CHR which provides a list of civil rights. He says that the recurring refrain of these
discussions — historical, academic and jurisprudential — is the understanding that “civil and political rights” is a
collectivity. It is a figurative basket of “rights directly possessed by individuals [that are correlatively] positive duties
upon the government to respect and fulfill them.
It is clear that the rights of suffrage and to hold public (elective) office, are but two of a manifold category of rights
“deal[ing] with liberty and participation in political life”
Estrada theorizes that the entire basket has been restored. This theory fails on two points. First, it fails to consider the
consequences of statutory requirements which specifically refer to the rights of suffrage and to hold public office.
Second, it fails to recognize that the language used in the pardon is equivocal at best, and, worse, the conclusion he
derives from this equivocal language is even contradicted by other examples previously considered in jurisprudence.
As against the broad concept of civil and political rights as an expansive composite or a vast spectrum of rights having
to do with liberty and membership in the political community, Articles 36 and 41 of the Revised Penal Code
specifically deal with the rights of suffrage and to hold public office.
Juxtaposed with the manifold category of civil and political rights, the effect of Articles 36 and 41 is that, in the specific
context of the President’s exercise of the power to grant pardon to a convict, the rights of suffrage and to hold public
office are segregated from all other similar rights.
This segregation is not grounded on whim. It hearkens to the fundamental distinction between public office as a public
trust, on the one hand, and pardon as a private act, on the other.
Apart from this, jurisprudence is replete with pardon, working to restore civil and political rights in this wise: “full civil
and political rights.”
Lest misinterpretation ensue, I am not here giving rise to a false dilemma and rendering inutile the restoration of
Estrada’s civil and political rights. Indeed, they have been restored, all but the rights denied to him on account of the
unremitted penalty of perpetual absolute disqualification, among these being the rights to vote and be voted for
elective public office. That entire spectrum of rights “deal[ing] with liberty and participation in political life” to mention
but a few such as his right to liberty;; freedom of abode and movement;; privacy rights;; rights of expression,
association, assembly;; his right to petition the government and to a redress of grievances — are his to enjoy except
for the select class of rights denied to him on account of the omissions in his pardon.
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o Jurisprudence and other official acts of this court are replete with instances in which reference to preambular clauses
was resorted to in interpreting instruments other than statutes and official acts of the President.
o The pardon is actually clear and unambiguous. Nevertheless, even if the position that there remains room for
interpretation was to be indulged, a reading of the pardon as a whole, and an illumination, through the preambular
clauses, of the pardon’s supposed ambiguity, will lead to the same conclusion: Estrada was and remains to be
disqualified
o Also, his acceptance articulates no qualification or reservation. Hence, it is an acceptance that is inclusive of his
promise to no longer seek elective public office.
LIM IS THE QUALIFIED CANDIDATE WHO OBTAINED THE HIGHEST NUMBER OF VOTES IN MAYOR ELECTIONS
o By definition, an ineligible individual is not even a candidate in the first place. When a person who is not qualified is
voted for and eventually garners the highest number of votes, even the will of the electorate expressed through the
ballot cannot cure the defect in the qualifications of the candidate. Thus, the votes cast for the ineligible candidate
should be considered “stray votes and should not be counted.
o The rule on succession in Section 44 of the Local Government Code cannot apply in instances when a de facto officer
is ousted from office and the de jure officer takes over. The ouster of a de facto officer cannot create a permanent
vacancy as contemplated in the Local Government Code. There is no vacancy to speak of as the de jure officer, the
rightful winner in the elections, has the legal right to assume the position.
FINAL NOTES
“This is template for our political elite at the expense of the masses who toil and suffer from the consequences of
corruption. It is hope for those who occupy high government offices who commit crimes as they await a next political term
when the people’s vigilance would have waned. It is the denouement in a narrative that will explain why there is no
effective deterrent to corruption in high places. The pragmatism of politics takes over the highest notion that public office
should be of effective public trust. The rule of law should unravel to meet this expectation.
I do not judge respondent for who he is as a person. That is not within our constitutional competence. But as a leader, the
respondent will best show that the way forward for the country he loves should be for him to repent and for him to suffer
courageously the consequences of his past acts. There are things which are clearly right. There are things which are
clearly wrong. For in our hearts we know that impunity, in any form, should be abhorred especially when it gives
advantage to the privileged and the powerful.”