POSTSCRIPT / September 10, 2020 / Thursday


Philippine STAR Columnist

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Duterte need not justify GI’s pardon

PRESIDENT Duterte need not sound defensive in justifying his grant of absolute pardon to US Marine Lance Cpl. Joseph Scott Pemberton who killed transgender hospitality worker Jennifer Laude in 2014 in a motel in the liberty city of Olongapo.

The Philippine president may not look like the imperial rulers of yore, but he wields the power to pardon the usual convict, no questions asked, at any time after his final conviction of a crime.

In fact, Duterte could simply say “Basta gusto ko!” (I just want to do it!) to justify his granting executive clemency to Pemberton, who is going home soon to the US after serving his 10-year sentence for homicide with credit for good behavior.

The President’s remark that the government has not been fair to Pemberton has elicited criticism for the special treatment being accorded the 25-year-old marine compared to countless Filipinos suspected of lesser crimes who continue to languish in detention.

Duterte announced the pardon in his weekly COVID report to the nation on Monday. No copy of his grant was released nor was there information on who recommended it, but Justice Secretary Menardo Guevarra said the President was acting on his own.

The usual procedure is for an applicant to apply for clemency. Prison authorities then evaluate his appeal and endorse it to the justice secretary, who will make the proper recommendation to the President. Guevarra said no such paperwork reached his desk.

The President’s action is anchored on Art. VII, Sec. 19, of the Constitution 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.”

In the United States, the president’s pardon powers are based on Article Two of their Constitution (Section 2, Clause 1), which provides: “The President… shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

The US president’s pardon power is limited to federal offenses as the Constitution only grants the president the power to pardon “(o)ffenses against the United States.” An offense that violates state law, but not federal law, is an offense against the state rather than the US.

The US Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesties.

President Domingo Cayosa of the Integrated Bar of the Philippines said that Duterte’s action on Pemberton was not entirely unexpected, as the Constitution gives the Chief Executive the privilege to grant pardon.

He cited three exceptions to the granting of pardons: (1) if the offender is being impeached, (2) if the criminal case pertains to election offenses, in which case the president needs the Commission on Elections’ recommendation, and (3) if the offender is not yet convicted with finality. Pemberton’s case is not one of these exceptions.

The Olongapo court has ordered the release of Pemberton after he settled his civil liability to Laude’s heirs and served his sentence.

Laude’s camp had appealed the release order, while the justice department filed a motion for reconsideration. Duterte’s grant of pardon, however, has rendered those moves moot and may allow the GI to leave the country as a normal traveler.

The upgrading of the government’s action from a routine release of a convict to the granting of absolute pardon has triggered speculation of a quid pro quo amid hints of improving relations between Manila and Washington.

While the justice secretary said he was “consulted” before the President granted the pardon, he said that no one prompted him to pardon Pemberton. In fact, he said, state prosecutors had moved for reconsideration of the Olongapo court’s order releasing the marine.

In his televised Monday report, Duterte said that Pemberton was not treated fairly — with reference to the Laude family’s questioning the claim of good behavior by the GI while detained in special air-conditioned quarters at a military camp guarded by US marines.

Guevarra said: “The President simply felt that it was not Pemberton’s fault that there was no way of recording his behavior in a military detention center by himself. So since there were no reports of misbehavior, the presumption of good conduct was on his side.”

Recalling that meeting with the President which coincided with the farewell call of US Ambassador Sung Kim, who is being assigned to Jakarta, Guevarra said: “Fifteen minutes into our meeting, the US ambassador arrived for his farewell call… He seemed rather surprised when the President mentioned Pemberton’s pardon, and he thanked the President for it.”

The Pemberton case was heard under rules pre-arranged under the Philippines-US Visiting Forces Agreement which defines the status of American servicemen in the country, including their trial for crimes committed against Filipinos.

On Feb. 11, Duterte sent a 180-day notice to the US embassy of the VFA’s termination for no specific reasons except that it did not serve Philippine interests. On June 1, however, the foreign office, on instructions of the President, suspended the termination countdown.

An escalation of collaborative activity followed, including Manila’s shopping for US military materiel and more frequent and louder expressions of mutual support in regional activities related to security.

(First published in the Philippine STAR of September 10, 2020)

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