POSTSCRIPT / September 25, 2007 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Charter & calendar: Obstacles to pardon

HURDLES: The Constitution and the calendar are among the biggest obstacles to Malacanang’s game of stampeding former President Joseph “Erap” Estrada into swallowing his macho pride and asking for plenary pardon.

Malacanang is dangling before Erap an early Christmas gift of pardon from President Gloria Arroyo.

One problem is Section 19 of Article VII (Executive Department) of the charter which says: “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.” (emphasis mine)

Another problem is that Erap has only until Thursday (Sept. 27), or 15 days after his Sept. 12 conviction for plunder by the Sandiganbayan, to file a motion for reconsideration.

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TO FILE OR NOT: Section 19 is clear that a convict may be granted executive clemency only “after conviction by final judgment.” The Supreme Court has reiterated this doctrine in several decisions.

Erap’s conviction may become final before Christmas only if the judicial process ends with the Sandiganbayan. This can happen if he does not move for reconsideration or appeal to the Supreme Court.

He will have to decide fast, tomorrow at the latest, whether or not to file a motion for reconsideration by Thursday.

If he does not file it, the process comes to an early conclusion and he may then qualify for pardon.

But if he still moves for reconsideration, the case is kept alive indefinitely until he says “Tama na!” and pleads for pardon.

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NO ASSURANCE: The announced meeting today between Interior and Local Government Secretary Ronaldo Puno and Erap at the latter’s resthouse in Tanay is crucial.

If the clemency package that Puno carries from President Arroyo is not acceptable or has no iron-clad guarantees, Erap may be forced to go ahead with his motion for reconsideration.

Puno is an adroit politician and tactician and, we presume, has plenipotentiary powers to talk for Ms Arroyo.

But the problem of Puno, and also of his friend, is that even if the reconsideration is aborted in anticipation of the promised pardon, there is no guarantee that the 70-year-Erap will receive his gift by Christmas 2007.

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LAYERING: President Arroyo is playing it safe by not publicly making an offer. She can deny or disown everything if the negotiations fail.

It is only Puno, chief presidential counsel Sergio Apostol and a few others in the Palace chorus who are serenading the Tanay tenant through the media.

It was Puno, not his principal the President, who said that pardon was being considered in view of Erap’s age and state of health.

Another reason has been brought in — that he has to be by the side of his 102-year-old mother Dona Mary who is now under life support at San Juan Memorial Center.

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SOLO ROLE: Pardon is the better move for Ms Arroyo, compared to an omnibus amnesty whose execution — and credit — she will have to share with the Congress.

The second paragraph of Section 19 adds: “He (the president) shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.”

Viewing it from Erap’s side, it might not be flattering to be bunched with Moro marauders, NPA fighters and a motley band of political prisoners in a wholesale amnesty.

Such an omnibus proclamation will rob the former movie star of the drama of a solo pardon with no strings publicly attached.

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CASES CITED: Proponents of an early pardon may find it difficult packaging a legally air-tight case. The Supreme Court said on July 30, 1996, in its resolution of GR No. 116512, one of many cases involving pardon:

“The ‘conviction by final judgment’ limitation under Section 19, Article VII xxx prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon or the process towards its grant should not be begun unless the appeal is withdrawn.”

The case involves two murder convicts who were pardoned while their case was on appeal. Having been pardoned, they tried withdrawing their appeal, but the Supreme Court instead ordered them rearrested and jailed.

The tribunal recalled earlier cases where pardon was invalidly granted while the convicts’ appeals were pending:

* On Jan. 31, 1995, in People vs. Hinlo, the Court declared the “practice of processing applications for pardon or parole despite pending appeals” to be “in clear violation of law.”

* On March 21, 1991, in People vs. Sepada, the Court signified in no uncertain terms the necessity of a final judgment before parole or pardon could be extended.

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OLD ITEM: Presidential pardon (also amnesty) is not a new feature of the 1987 Constitution.

* Malolos Constitution of 1899 — The fifth paragraph of Article 68 under Title VIII (The President of the Republic) says: “The President of the Republic may be authorized by special law xxx (to) grant general amnesties and pardons.”

* Constitution of 1935 — Section 10 (6) of Article VII (Executive Department) says: “The President shall have the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction, for all expenses except in case of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper to impose. He shall have the power to grant amnesty with the concurrence of the Congress.”

* Constitution of 1973 – Section 14 of Article IX (The Prime Minister and the Cabinet) says: “ The Prime Minister may, except in cases of impeachment, grant reprieves, commutations, and pardons, remit fines and forfeitures after final conviction, and with the concurrence of the National Assembly, grant amnesty.”

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(First published in the Philippine STAR of September 25, 2007)

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