Innocence by legal fiction | Inquirer Opinion

Innocence by legal fiction

/ 12:04 AM February 09, 2015

It is said that “fictions arise from the law, and not law from fictions.” Thus, legal fictions have been established in law and given statutory and jurisprudential recognition, even constitutional approbation. The doctrine of legal fiction assumes and creates a fact, situation or condition with legal effect apart from the obtaining facts or even contrary to the factual milieu.

A classic example of legal fiction is adoption, where the adoptee becomes the legitimate offspring of the adoptive parents to the exclusion of the natural parents. This is filiation by legal fiction.


A corporate person is also the product of legal fiction where a duly organized corporation is vested with many of the legal attributes, rights and responsibilities of a natural person, including the right to sue and be sued. This is juridical personality by legal fiction.

Under Article 89 of the Civil Code, children conceived or born of marriages that are void from the beginning and those conceived after the annulment of voidable marriages are called natural children by legal fiction. They are entitled to support and proportionate inheritance, among others.


The right of representation is a legal fiction sanctioned by Article 970 of the Civil Code which provides that “representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.” The representative is called to the succession by virtue of the law in order to foreclose a void in the transmission of inheritance. This is heirship by legal fiction.

Even the Constitution enshrines at least two instances of legal fiction: grant of executive clemency or pardon, and grant of amnesty. Section 19 of the 1987 Constitution provides: “Except in cases of impeachment, or as otherwise provided …, 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.”

Amnesty partakes of the nature of legal fiction because contrary to the ascertainable and culpable facts, political offenses committed by certain groups of offenders are obliterated as if no crime has been committed in order to bestow forgiveness, forge unity and extend political accommodation. The beneficiaries can avail themselves of the amnesty within a limited period.

Some of those granted amnesty in the past were: guerillas during the Japanese Occupation who had committed crimes in their efforts to resist the enemy (Proclamation No. 8 dated Sept. 7, 1946); leaders, members and supporters of the Moro National Liberation Front and the Bangsamoro Army (Presidential Decree No. 1082 dated Feb. 2, 1977); all persons who, in the furtherance of their political beliefs, may have committed acts penalized by existing laws (Proclamation No. 80 dated Feb. 28, 1987); members of communist rebel groups (Proclamation No. 1377 dated Sept. 6, 2007); and participants in the Oakwood mutiny, Marine standoff and Manila Peninsula incident (Proclamation No. 75 dated Nov. 24, 2010).

Executive clemency or absolute pardon likewise entails the doctrine of legal fiction since a convict is cleansed of his guilt and freed from criminal liability after his final conviction. The convict’s penalty is consigned to oblivion. His freedom ensues as a legal consequence because he is purged of culpability by fiction of law upon the grace or mercy of the President.

This brings us to the import and effect of the pardon that then President Gloria Arroyo granted to former president Joseph “Erap” Estrada who was found guilty of plunder by the Sandiganbayan and sentenced to life imprisonment.

The dispositive portion of the Sandiganbayan decision dated Sept. 12, 2007, pertinently reads:


“WHEREFORE, in view of all the foregoing, judgment is hereby rendered in Criminal Case No. 26558 finding the accused Former President Joseph Ejercito Estrada GUILTY beyond reasonable doubt of the crime of PLUNDER defined in and penalized by Republic Act No. 7080, as amended. x x x Accordingly, accused Former President Joseph Ejercito Estrada is hereby sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification.”

That is the reality of Erap’s guilt and conviction.

However, on Oct. 25, 2007, 43 days after his conviction, Erap was granted absolute pardon by President Arroyo. The transcript of the document of pardon partially reads: “I hereby grant executive clemency to Joseph Ejercito Estrada, convicted of plunder by the Sandiganbayan and imposed the penalty of reclusion perpetua. He is hereby restored to his civil and political rights.”

That is the legitimized fiction of Erap’s


Although pardon, unlike amnesty, only obliterates the penalty and not the offense, legions of Erap supporters could claim that his absolute pardon is a declaration of his innocence as the penalty imposed on him was lifted and his civil and political rights restored. This is innocence by legal fiction.

For the masses that still idolize Erap, his freedom equates with his innocence. To them, only the guilty are incarcerated, while the innocent are set free.

However, the reality is that the Sandiganbayan found Erap culpable of plunder. This is an undeniable historical fact. It is recorded in Philippine criminal proceedings, if not jurisprudence. On the other hand, the fiction is that he is “innocent” consequent to his absolute pardon. Any discerning assessment of Erap, whether as a candidate for public office, government functionary or private citizen, by the Filipino people must not fail to distinguish the reality of his guilt from his fictionalized innocence, albeit legal.

Edcel C. Lagman is a former representative of the first district of Albay.

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