[] “Distinguish pardon from amnesty.”
[] “May the doctrine of command responsibility apply to the President for abuses committed by the armed forces (AFP and police), given his unique role as commander-in-chief?”
--- Questions # IV (b) and # XIII (b) in Nov. 5, 2017 bar examination on political law
Questions relating to the Trillanes amnesty and the President’s liability for abuses of the police or military were asked in 2017, not last Sunday, the first day of the 2018 bar exams.
The questions were not too soon or too late. The Trillanes issue is still not resolved. And since 2016 when President Duterte assumed office, the issue of excesses in waging the campaign against illegal drugs has continued to rage.
Candidates for the law profession routinely watch out for the burning political issues during their pre-bar review. Often, bar examiners and their chairman pick a question or two tied to news headlines.
What disturbs examinees
If the questions they expect don’t come out, examinees are only a bit disappointed. They are seriously disturbed though when the answers they’ve learned are changed when the issues are litigated in court. Or when the public official behaves as if the law were different or could be bent according to whim or desire of powers-that-be.
[] Such as on the remedy of quo warranto that was used to unseat then Supreme Court chief justice Ma. Lourdes Sereno. Their law schools taught them she could be removed by impeachment, a precept attested to by a hundred law deans and professors in the country.
[] Such as the precept of amnesty. Amnesty “looks backward and obliterates the offense,” as distinguished from pardon, which merely “removes the consequences or effects of the crime.” If Trillanes’s crimes were already wiped out, how could they be restored by revoking the amnesty, on the pretext that his records were missing?
[] Such as the principle of command responsibility. Most bar examinees can tell you, with half their mind not working, that a President is immune from suit only during his term of office and may be held liable after he steps down for abuses committed by police or military because of his “unique position as commander-in-chief.”
Cocky commanders
The same 2017 bar question asked for the elements that must exist for a superior or commander to be held liable under command responsibility. One crucial element is that he “must have failed to take necessary and reasonable measures to prevent the crimes or punish the perpetrators.”
That wouldn’t be tough for a prosecutor to prove, given the record of illegal killings not only of drug suspects but also peasants and activists. For now, what is unsettling is that the superiors or commanders behave as if the principle of command responsibility wouldn’t touch them.
Since law enforcers know the law, their being cocky may be explained only by their confidence they wouldn’t be prosecuted. A false sense of comfort because the doctrine of command responsibility respects only the term of a sitting president. When he ceases being president, he sheds off the shield of immunity, thus a tempting cause for authoritarian law and indefinite stay in office.
Interpreting the law
Those who wish to become lawyers know “the door to the bar swings on slow hinges.” That thought is intimidating enough. Must they worry that the stuff they learned in law school and tackle in the bar exams may not be the same law as interpreted in actual practice?
The new lawyers might even be the ones taking the legal precepts to a new high or unprecedented low, depending upon what the client’s interest demands. For now, it’s mostly old practitioners, law school buddies of the president, who are doing that.