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Chapter 3: Executive Clemency

At the end of this chapter the student should be able to:

• Define Executive Clemency

• Enumerate the Forms of Executive Clemency
• Understand the Causes of Total/ Partial Extinction of Criminal
Liability Under Article 89 of the RPC.

What is an Executive Clemency?

Clemency simply means

leniency or mercy. A power given to
a public official, such as a governor
or the president, to in some way
lower or moderate the harshness of
punishment imposed upon a prisoner.
Clemency is considered to be an act
of grace. It is based on the policy of
fairness, justice, and forgiveness. It
is not a right but rather a privilege,
and one who is granted clemency
does not have the crime forgotten, as
in amnesty, but is forgiven and
treated more leniently for the criminal acts.

Executive Clemency is the power of a President in state convictions, to

pardon a person convicted of a crime, commute the sentence (shorten it, often to
time already served). or reduce it from death to another lesser sentence. There
are many reasons for exercising this power, including real doubts about the guilt

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of the party, apparent excessive sentence. humanitarian concerns such as illness
of an aged inmate, to clear the record of someone who has demonstrated
rehabilitation or public service, or because the party is a political or personal
friend of the Governor.

It is an executive function and not a function of the judiciary. It is also a

non-delegable power and it can only be exercised by the President of the
Philippines personally (Villena vs. Secretary of the Interior, 67 Phil. 451, 453)

The President extends executive clemency for administrative penalties.

The Constitution makes no distinction with regard to the extent of the pardoning
power except with respect to impeachment. (Llamas vs. Orbos, G.R. No. 99031,
Oct. 15, 1991)

Limitations on the Exercise of the Power to Grant Pardon

1. It cannot be granted in cases of impeachment.

Impeachment has been defined as a method of national inquest into

the conduct of public men.

2. It cannot be granted in cases of violation of election laws without the

favorable recommendation of the Commission on Elections.
3. It can only be granted after conviction by final judgment.
The second limitation is based on the constitutional provision under
Article IX(C) (5). The Commission on Elections. Section 5 provides:

"Section 5. No pardon, amnesty, parole, or suspension of sentence for

violation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission."

Causes Of Total Extinction of Criminal Liability Under Article 89 of the Revised

Penal Code (RPC)

1. DEATH OF CONVICT-death of convict extinguishes criminal liability at

any stage of the criminal proceeding: civil liability is likewise extinguished
if death occurs before final judgment. If death occurs, there will be nobody
to serve the penalty for the crime. The death of the convict, whether
before or after final judgment, extinguishes criminal liability, because one
of the juridical conditions of penalty is that it is personal.

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What are the Effects of Death of the Accused?

a. Death of the offender before or during trial.

If death occurs before or during the trial, the criminal case must be
dismissed. This is so because of the preservation of the constitutional
rights of the deceased accused who would not be any more in a position to
defend himself. Further, it would be useless to proceed because the ends
of criminal justice (Retribution and rehabilitation) could not anymore be
served. There would be no convict upon whom the personal penal
consequences of the offense could be imposed, neither is there a culprit
who needs rehabilitation (Domondon, Primus Pre-Bar Review Division,
2009 Wrap-Up Review Notes in Criminal Law, p.97)

b. Death of accused pending appeal.

The death of the accused pending the appeal of his conviction will
extinguish his criminal liability as well as his civil liability arising from the
crime committed.

However civil liability arising from sources other than the crime
committed survives and may be pursued in a separate civil action. Sources
of civil liability other than crime are law, contracts, quasi-contracts, and
quasi-delicts. (People vs. Bayotas, G.R. No. 152007, September 2, 1994)

c. While death pending appeal extinguishes criminal liability, the Supreme

Court may still review the case.

The accused's death pending appeal of his conviction results to

automatic dismissal of the charges. The Supreme Court may however,
review the case and if the accused is found innocent, shall render the
appropriate judgment, belated though it may be to vindicate his sullied
honor and redeem his memory from an undeserved accusation.
(Domondon, Primus, 2009 Wrap-Up Review Notes in Criminal Law, p.97,
citing Dumlao vs. Court of Appeals, et al., G.R. No. L-51625, October 5,
1988)

2. SERVICE OF THE SENTENCE - after the convict served his sentence, his
criminal liability is automatically extinguished. However, service of
sentence does not extinguish his civil liability

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Crime is a debt incurred by the offender as a consequence of his
wrongful act and the penalty is but the amount of his debt. When payment
is made, the debt is extinguished.

3. AMNESTY - is granted by Proclamation of the Chief Executive with the

concurrence of Congress. It is a public act of which the courts should take
judicial notice. Criminal action or liability is totally extinguished by
amnesty, completely extinguishing the penalty and its effects

Amnesty is an act of the sovereign power granting oblivion or a

general pardon for a past offense, and is rarely, if ever, exercised in favor
of a single individual. It is usually exerted in behalf of certain classes of
persons, who are subject to trial but have not yet been convicted. (Reyes,
Revised Penal Code (Book Two), 14th ed., p. 831 citing Brown vs. Walker,
161 U.S. 602)

4. ABSOLUTE PARDON - looks forward and relieves the offender from the
consequences of an offense of which he has been convicted. An absolute
pardon not only blots out the crime committed but also removes all
disabilities resulting from the conviction.

5. PRESCRIPTION OF PENALTY - is the loss or waiver of the State of its

right to punish the convict. In other words, prescription of penalty is the
loss or forfeiture of the right of the Government to execute the final
sentence after the lapse of a certain time.

Prescription of penalty occurs when the convict escapes from

detention or evades the service of his sentence. Evasion of service of
sentence is a condition precedent to the running of the period. The tolling
of period of prescription of penalty occurs when he commits another
crime, or is captured or goes to another country with which the
Philippines has no extradition treaty.

Prescriptive period means the period within which a specified action

must be filed (Encarnacion, et al. vs. Producers Bank, et al., G.R. No.
92943, May 8, 1992)

6. PRESCRIPTION OF CRIME OR OFFENSE - refers to the loss or waiver of

the right of the State to prosecute offenders after the lapse of certain
time. It cannot be waived or extended since it is for the benefit of the

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accused. Once prescription has set in, the courts automatically lose
jurisdiction.

What is the Effect of Prescription of the Crime?

The Supreme Court ruled that: "As prescription of the crime is the
loss by the State of the right to prosecute and punish the same, it is
absolutely indisputable that from the moment the State has lost or waived
such right, the defendant may, at any stage of the proceeding, demand and
ask that the same be finally dismissed and he be acquitted from the
complaint, and such petition is proper and effective even if the court
taking cognizance of the case has already rendered judgment and said
judgment is merely in suspense, pending the resolution of a motion for a
reconsideration and new trial, and is more so since in such a case there is
not yet any final and irrevocable judgment." (Herrera, Remedial Law IV,
2007 ed., p. 665 citing People vs. Moran, 44 Phil. 391)

7. MARRIAGE OF THE OFFENDED WOMAN UNDER ARTICLE 344, RPC -

marriage of the offender with the offended woman after the commission of
any of the crimes of rape, seduction, abduction or acts of lasciviousness,
as provided in Art.344, must be contracted by the offender in good faith.

8. EXPRESS REPEAL OF PENAL LAW-if a law was enacted and it provides

therein that the criminal liability of the accused is extinguished, then it is
an express repeal of a penal law.

Causes of Partial Extinction of Criminal Liability under Article 94 of the Revised

Penal Code (RPC)

1. CONDITIONAL PARDON - any person who has been granted conditional

pardon shall incur the obligation of complying strictly with the conditions
imposed therein; otherwise, his non-compliance with any of the conditions
specified shall result in the revocation of the pardon and the provisions of
Article 159 shall applied to him. (Art. 95, Revised Penal Code)

Conditional Pardon delivered and accepted is considered a contract

between the sovereign power of the executive and the convict that the
former will release the latter upon compliance with the condition. In
conditional pardon, the condition usually imposed upon the convict is that
"he shall not again violate any of the penal laws of the Philippines."

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2. COMMUTATION OF SENTENCE - simply mean, reduction or mitigation of
the penalty. The commutation of the original sentence for another of a
different length and nature shall have the legal effect of substituting the
latter in the place of the former. (Art. 96, Revised Penal Code

Commutation of Sentence is a change of the decision of the court made by

the Chief Executive by reducing the degree of the penalty inflicted upon
the convict, or by reducing the length of the imprisonment or the amount
of the fine.

Minimum Requirements before Commutation of Sentence is granted

A petition for executive clemency may be reviewed only if the petitioner

meets the following minimum requirements:

A. For Commutation of Sentence, the prisoner should have served:

1) At least one half (1/2) of the minimum of his indeterminate and/or

definite prison term or the aggregate minimum of his indeterminate
and/or definite prison terms

2) At least ten (10) years, for prisoners sentenced to one (1) reclusion
perpetua or one (1) life imprisonment, for crimes/offenses not
punishable under Republic Act No. 7659 and other special laws.
3) At least twelve (12) years, for prisoners whose sentences were
adjusted to forty (40) years in accordance with the provisions of
Article 70 of the Revised Penal Code, as amended
4) At least fifteen (15) years, for prisoners convicted of heinous
crimes as defined in Republic Act No. 7659 committed on or after
January 1, 1994 and sentenced to one (1) reclusion perpetua or one
(1) life imprisonment
5) At least seventeen (17) years, for prisoners sentenced to two (2) or
more reclusion perpetua or life imprisonment even if their sentence
were adjusted to forty (40) years in accordance with the provisions
of Article 70 of the Revised Penal Code, as amended.
6) At least twenty (20) years, for those sentenced to death which was
automatically commuted or reduced to reclusion perpetua or life
imprisonment.

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B. For Conditional Pardon, the prisoner should have served at least one-half
(1/2) of the maximum of the original indeterminate and/or definite prison
term.

3. GOOD CONDUCT ALLOWANCES DURING CONFINEMENT - credit

earned by an inmate which reduces the duration of his incarceration. It
also refers to time subtracted from a sentence by prison authorities for
good behavior or for other reasons.

Special Time Allowance for Loyalty of Prisoner refers to the

deduction of 1/S of the period of the sentence of a prisoner who, having
evaded the service of his sentence during the calamity or catastrophe
mentioned in Art. 158 of the Revised Penal Code, gives himself up to the
authorities within 48 hours following the issuance of the proclamation by
the President announcing the passing away of the calamity or catastrophe
(Art. 98, RPC)

Who May grant Good Conduct Time Allowance (GCTA)?

The Director of Prisons may grant GCTA to an inmate who displays

good behavior and who has no record of breach of discipline or violation
of prison rules and regulations

Whenever lawfully justified, the Director of Prison shall grant

allowances for good conduct. Such allowances once granted shall not be
revoked. (Art. 99, RPC)

What are the Effects of GCTA when granted?

The good conduct or behavior of an inmate shall entitle him to the

following deductions from the period of his sentence:

a. During the first two (2) years of his imprisonment, he shall be allowed a
deduction of five (5) days for each month of good behavior;

b. During the third to fifth year, inclusive, of his imprisonment, he shall be

allowed a deduction of eight (8) days for each month of good behavior

c. During the following years until the tenth year, inclusive of his
imprisonment, he shall be allowed a deduction of ten (10) days for each
month of good behavior and

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d. During the eleventh and successive years of his imprisonment, he shall be
allowed a deduction of fifteen (15) days for each month of good behavior
(Art. 97, RPC)

Computation of GCTA

Calendar months and years are considered reference to sentences

and time served, while thirty (30) days constitute a month in computing
GCTA credits.

GCTA of Detainee Life Termer

Life Termer A detainee shall only be granted GCTA if he voluntarily

offers in writing to perform such labor as may be assigned to him. In such
a case, the credit he may receive shall be deducted from sentence as may
be imposed upon him if he is convicted.

An inmate sentenced to life imprisonment shall not be granted

GCTA while his sentence is on appeal.

Revocation/Restoration of GCTA

GCTA once granted shall not be revoked without just cause. The
GCTA, which an inmate is deprived of because of misconduct, may be
restored at the discretion of the Director upon the recommendation of the
Superintendent.

4. PAROLE --release from imprisonment, but without full restoration of

liberty, as parolee is still in the custody of the law although not in
confinement.

Parole consists in the suspension of the sentence of a convict after

serving the minimum term of the indeterminate penalty, without granting
pardon, prescribing the terms upon which the sentence shall be
suspended. If the convict fails to observe the conditions of the parole, the
Board of Pardons and Parole is authorized to direct his arrest and return
to custody and thereafter to carry out his sentence without deduction of
the time that has elapsed between the date of the parole and the
subsequent arrest.

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5. PROBATION - is a disposition under which a defendant, after conviction
and sentence, is released subject to conditions imposed by the court and
to the supervision of a probation officer. (Sec. 3[a], P.D. No. 968, as
amended)

Forms of Executive Clemency

1. PARDON - it is an act of grace given by those charged with the power and
authority to execute laws which exempts the individual subject of pardon
from the punishment which the law inflicts for a crime he has committed.

A pardon is an act of grace, proceeding from the power entrusted

with the execution of the laws, which exempts the individual on whom it is
bestowed from the punishment the law inflicts for a crime he has
committed. It is the private, though official, act of the executive
magistrate, delivered to the individual for whose benefit it is intended and
not communicated officially to the Court... A pardon is a deed, to the
validity of which delivery is essential, and delivery is not complete without
acceptance. It may then be rejected by the person to whom it is tendered,
and if it be rejected, we have discovered no power in a court to enforce it
on him. (United States vs. Wilson, 7 Pet. (32 U.S.) 150, 160-161[U.S.
1833])

2. REPRIEVE - the execution of the sentence is stayed or postponed.

(People vs. Vera, 65 Phil. 56, 110 [1937])

A reprieve is a withdrawal or withholding of punishment for a time

after conviction and sentence, and is in the nature of a stay of execution.
It postpones the execution of a sentence to a day certain. Usually, it is
granted to a prisoner to afford him an opportunity to procure some
amelioration of the sentence imposed.

Reprieve is also another prerogative exercised by the President of

the Philippines. Generally, it is applied to death sentences already
affirmed by the Supreme Court. But it can also be invoked in other
cases that have become final. In death sentences, the date of execution of
the death convict is held in abeyance for a certain period to enable the
Chief Executive to temporarily stay execution of sentence.

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A president usually resorts to this to resolve all his doubts and
reservations and want to really establish that the convict truly deserves to
be executed. The President may not want to be conscience-stricken, if
later, it is found out that the executed convict did not deserve to die.
Reprieve is also being widely exercised by the President on almost all
death convicts because of strong pressure from various lobby groups.

A reprieve differs from a pardon in that the former establishes a

temporary delay in the enforcement of the sentence imposed by the court,
without changing the sentence or forgiving the crime while, a reprieve
might be issued for the execution of a prisoner to give time to the
prisoner to prove his or her innocence.

3. PAROLE - refers to the conditional release of an offender from a

correctional institution after he has served the minimum of his prison
sentence. The person subject of parole is released from imprisonment but
his liberty is not fully restored because the parolee is still considered in
custody of the law although he is not in confinement.

Parole is the planned release and community supervision of

incarcerated offenders before actual expiration of their prison sentences.
It is usually considered a way of completing a prison sentence in the
community and is not the same as a pardon; the paroled offender can be
legally recalled to serve the remainder of his or her sentence in an
institution if the parole authorities deem the offender's adjustment
inadequate or if while on parole the offender commits another crime.

4. AMNESTY -is an act of grace given with the concurrence of Congress. It

is usually extended to groups of persons who committed political offenses.
It abolishes the offense itself.

5. COMMUTATION - mitigates or reduces the penalty itself. Commutation is

a remission of a part of the punishment; a substitution of a less penalty for
the one originally imposed.

In criminal law, commutation is the substitution of a lesser

punishment for a greater one. Commutation of Sentence is the change in
the sentence of the court made by the President which consists in
reducing the penalty imposed upon the offender.

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A commutation of sentence refers to the reduction of the duration of
a prison sentence. It is another prerogative of the President as provided
under the Constitution. It is an act of clemency by which a heavier or
longer sentence is reduced to a lighter or shorter term. Example, a death
sentence or life imprisonment is reduced to a shorter sentence.
Commutation does not forgive the offender but merely reduces the penalty
of life imprisonment or death sentence for a term of years. A commutation
of sentence amounts to a reduction of the penalty originally imposed.
Commutation of sentence may take place even without the grantee's
consent. Under the Revised Penal Code, as amended by Republic Act 7659
(Death Penalty Law) providing for the re-imposition of the death penalty,
commutation of the penalty of death to reclusion perpetua is provided in
cases when a convict is below eighteen (18) years of age at the time of
the commission of the crime or over seventy (70) years of age, or when
the required majority vote is not obtained for the imposition of or
affirmance of an imposed death penalty by the Supreme Court En Banc.

Commutation of sentence also benefits inmates sentenced to a fixed

or determinate sentence, which renders him or her ineligible for parole.
Commutation of sentence changes the original fixed sentence to a lesser
indeterminate sentence, which will then enable the beneficiary to be
released on parole. Commutation is also appropriate to convicts sentenced
to several counts.

Minimum Requirements of Imprisonment before Commutation of Sentence

is Granted

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 terin
aggregate minimum of the indeterminate prison terms;
c. At least ten (10) years for inmates sentenced to one (1) reclusion
perpetuo or one (1) life imprisonment for crimes/offenses not punished
under Republic 7659 and other special laws;
d. At least thirteen (13) years for inmates who’s 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,

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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. (Sec. 4, Board of Pardons and Parole
(Resolution No. 24-4-10])

6. REMISSION OF FINES AND FORFEITURES - it should be noted that

remission of fines and forfeitures merely prevents the collection of fines
or the confiscation of forfeited property; it cannot have the effect of
returning property which has been vested in third parties or money in the
public treasury.

The President can remit a fine or forfeiture only with respect to

those within the interest of the state and not those of private parties
whose rights have been vested and fixed by the judgment. Fines and
forfeitures already paid to the treasury cannot be remitted either since
any disbursement of funds therefrom require legislation.

Remission refers to an act of liberality by virtue of which, without

receiving any equivalent, the creditor renounces the enforcement of the
obligation, which is extinguished in its entirety or in that part or aspect of
the same to which the remission refers.

Fine is a pecuniary punishment imposed by a lawful tribunal upon a

person convicted of crime or misdemeanor. (Esler vs. Ledesma, 52 Phil.
120)

Forfeiture is the incurring of a liability to pay a definite sum of

money as the consequence of violating the provisions of some statute or
refusal to comply with some requirement of law. It may be said to be a

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penalty for misconduct or breach of duty. (Cabal vs. Kapunan, 116 Phil
1366)

Is Suspension of Sentence the same as Reprieve?

No. Suspension of sentence is always a part of the judicial

while reprieve is always a part of the executive power. The suspension of
sentence simply postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it, and all civil
disabilities, remain and become operative when judgment is rendered.
Reprieve on the other hand, is a prerogative exercised by the President of
the Philippines (Executive Clemency). Generally, it is applied to death
sentences already affirmed by the Supreme Court.

The Instances when Sentence may be suspended

The following are instances or situations in criminal cases wherein

the accused, either as an adult or as a minor, can apply for and/or be
granted a suspended sentence:

1. Where the accused became insane before sentence could be promulgated

(Art. 79, RPC);
2. Where the offender, upon conviction by the trial court, filed an application
for probation which has been granted. (Baclayon vs. Mutia, 129 SCRA 148
(1984])
3. Where the offender needs to be confined in a rehabilitation center because
of drug-dependency although convicted of the crime charged.
4. Where the offender is a youthful offender under Art. 192, PD 603,
otherwise referred to as the Child and Youth Welfare Code.
5. Where the crime was committed when the offender is under 18 years of
age and he is found guilty thereof in accordance with R.A. No. 9344,
otherwise known as the "Juvenile Justice and Welfare Act of 2006," but
the trial court subjects him to appropriate disposition measures as
prescribed by the Supreme Court in the Rule on Juveniles in Conflict with
the Law.
6. The death sentence shall be suspended upon a woman while she is
pregnant or within one year after delivery, (Art. 83, RPC)
7. Suspension of sentence of a First Time Minor Offender under Article 66 of
R.A. No. 9165, known as the Comprehensive Dangerous Drugs Act of
2002. (U.P Law Center, Suggested Answer for the 2006 Bar Examination
Question No. V, 2008 ed., pp. 19-20)

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Suspension of the Execution of Death Sentence under Article 83 of the RPC

Death sentence shall be suspended when the accused is a:

a. Woman, while pregnant;

b. Woman, within one year after delivery; or
c. A person over 70 years of age.

NOTE: The Office of the President shall not act upon any recommendation for executive clemency from
the Board unless all supporting documents enumerated above have been submitted. (Sec. 19, Amended
Guidelines for Recommending Executive Clemency)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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