phBar.org (Bar Exams Forum-Philippines)

VIII.

ST, a Regional Trial Court judge who falsified his Certificate of Service, was found liable by the Supreme Court for serious miconduct and inefficiency, and meted the penalty of suspension from office for 6 months. Subsequently, ST filed a petition for executive clemency with the Office of the President. The Executive Secretary, acting on the said petition issued a resolution granting ST executive clemency. Is the grant of executive clemency valid? Why or why not? (6%)

The grant of executive clemency is not valid.

Under the law, the Presidential prerogative in granting executive clemency in administrative cases covers only the executive branch of the goverment but not the legislative nor the judiciary. To do so would violate the principle of separation of powers.

Note : This is originally posted by Law-man

Although I agree with the answer given above, allow me to share a different point of view, thus:

The grant is valid but is unenforceable.

The President may validly give executive clemency to any and all public officers. However, in view of the doctrine of separation of powers, the executive clemency given to a member of the judiciary may involve issues of propriety as it may encroach upon the independence of the judicial department to discipline its members.

Nevertheless, mere impropriety does not render the clemency invalid. It is simply, by reason above-given, unenforceable against the judicial department.

Thus, the suspension of the judge cannot be used against him if he is to serve under the executive department in the future.

In unity with Atty. Macka’s opinion, I submit that the grant, although valid, is unenforceable.

The grant is valid. To hold otherwise would mean to violate the time-honored principle of separation of powers between the co-equal branches of the government. The scope of application of the presidential prerogative of granting executive clemency lies within the discretion of the President. In fact, any and all public officers (as pointed out by Atty. Macka) in whatever branches of the government may be given executive clemency. To this effect, other branches of the government, the judiciary in particular, may not substitute, review, or abrogate, much less, declare a certain grant of executive clemency by the president invalid, and thus consequently embarrass a co-equal branch. Be it noted that the nature of such power is a prerogative one---a privilege granted by the constitution.

However, although it is valid, the same may not be given effect, and therefore, unenforceable. This is only the way to pass upon the propriety of such grant---to declare it without effect as against the judiciary and to refuse to recognize its validity or invalidity.

In the case of Llamas Vs. Orbos
G.R. No. 99031 October 15, 1991, Justice Paras wrote...

"We wish to stress however that when we say the President can grant executive clemency in administrative cases, We refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government."

Yes, but the ruling did not say that the clemency becomes void or invalid in the executive branch.

As Macka indicated in another post, there are 10 correct answers to each question. So let me try to suggest an alternative answer, viz. :

If the law does not distinguish, so we must no distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. Neither does it distinguish which individual to whom executive clemency may be granted. In other words, the power of clemency extends to other cases other than criminal cases and beneficiary of which may be any person convicted by final judgment.

We cannot set aside an executive clemency though it may appear to us that the beneficiary is totally undeserving of the grant or such grant may encroach upon the independence of a co-equal body. The philosophy behind the grant of power to the President to grant executive clemency 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 strict application of the law.

I therefore submit that the resolution granting ST executive clemency is valid.

Sr. Lito, that's definitely one of the ten answers to that question!

Let me give another answer.

The said executive clemency is not valid. The power to discipline members of the judiciary is vested in the Supreme Court. Once the Supreme Court meted out penalty against its erring member, the power to revoke such penalty or to pardon that erring member should also belong to the Supreme Court as implied to its power to discipline. Thus, the President is divested with power to issue such executive clemency in favor of the member of judiciary. If the President does not have power to pardon erring member of the judiciary, it cannot validly issue executive clemency in favor of such erring member of judiciary. Exercising power belongs to the Supreme Court by the President is violating the principle of separation of powers enshrined in the 1987 Constitution.

My answer goes a little something like this....


The grant of executive clemency is not valid. This is because such act encroaches upon the Supreme Court's sole authority to discipline erring judges of the lower courts. To rule otherwise would be tantamount to judicial apostacy, the time honored principle of separation of powers would be rendered nugatory.

In addition, it is a well-settled rule that while it is true that the president may grant executive clemency in administrative cases the same is limited to administrative cases involving the executive department. The legislative nor the judicial department is not within the ambit of such executive power or prerogative.

Points to consider:

1. Under the Constitution, who has the power of administrative supervision over all courts and personnel thereof?

2. What is the purpose of this provision (Section 6, Article VIII)? Is it not one of the significant innovations to strengthen the independence of the judiciary?

3. Does not this power include the power of the Supreme Court (sitting en banc) to discipline judges of lower courts (Section 11, Article VIII)?

4. Assuming the President may grant executive clemency to a suspended judge, what will be the supposed effect of such clemency? Lifting the suspension prior to the expiration of its period of effectivity? Does this not have administrative implications?

5. If that is so, will it not constitute an encroachment on the power of supervision and disciplining power of the Supreme Court? Will it not affect the independence of the judiciary?

The executive clemency is valid.

First, there is no violation of the doctrine of separation of powers. The Supreme Court was not prevented from imposing the penalty of suspension against the erring judge. As a matter of fact, the pardon was precisely given in recognition of the power of the SC to discipline the members of the judiciary. The executive clemency did not encroach upon the disciplining power of SC. The exercise by the SC of its power to suspend is not inconsistent with the power of the Pres to pardon a suspended member of the judiciary.

The answer would have been different if the penalty imposed is dismissal because only the SC has the power to determine who will remain as members of the Judiciary.

Second, the fact that the resolution was issued by only the Exec Sec is of no moment because the Exec Sec can perform the purely personal acts of the Pres, unlike the case of other Cabinet Secs. For instance, only the Pres of his Exec Sec can raise the issue of Executive Privilege before Congressional hearings. No other Cabinet Sec can exercise such power.

My answer goes something like this:

The executive clemency is not valid as the case at bar stated that it was only issued by the Executive Secretary. Only the President may grant acts of forgiveness/graces in the form of clemencies, pardons, etc. If such act was willed/given out only by the Exec. Secretary; then he is actually usurping a Presidential prerogative. The Exec. Secretary may act on matters purely personal to the President ONLY if he is authorized by the latter.

With all due respect, I think this is not the issue of the question. There was no usurpation since the Executive Secretary is an agent of the President who can act in his/her behalf. The act is valid until declared invalid by the President.

With all due respect to all the answers of our dear lawyers, my answer would be in the negative... my humble reason goes this way.

If what we mean by Executive Clemency is under Sec. 19 Article 7 of the 1987 Constitution, then the case at bar is not applicable...

Under Section 19. "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.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress."

Since the judge has not been convicted by final judgment, therefore I conclude that Executive Clemency cannot be granted to him.