When pardon is afoot

Posted by watchmen
September 21, 2020
Posted in OPINION

The Supreme Court is “the court of last resort.” For people seeking a reversal of their convictions in criminal cases, it is there where they lay their souls bare, point out the minutest errors made during trial, and invoke all the legal defenses that can help them secure a release from the yoke of prosecution and incarceration.

A defeat in the Supreme Court normally spells the end of a convict’s quest for freedom. Any further relief will have to take the celestial stairway, as it is only God in His infinite wisdom who can take notice of and alter a man’s misfortunes.

But there is such a divine power in the Constitution. When the President pardons a convict by final judgment he can do so without fear of interference from Congress and the Courts. This power is almost boundless, as the only instance where the President may not extend such mercy is with respect to those convicted by the Senate sitting as an impeachment court.

The pardoning power was granted by the people in recognition of the imperfections of human institutions.

The police, the prosecution, and the judiciary in all its levels, do not always move in perfect cadence as to be able to render unsullied justice at the end of the process that determines guilt or innocence.

The President, by exercising his power to pardon, may also choose to mitigate the harshness of penalties that are handed out after the unyielding application of the law over an established set of facts.

For example, a judge has no choice but to render judgment and impose the appropriate penalty against an accused no matter how harsh it is because that is what the law requires.

But in the same decision the judge may recommend executive clemency for the accused due to the latter’s advanced age, or because of a debilitating illness he may have acquired in the meantime. It is the President’s sole discretion whether or not to heed the recommendation.

From its humanitarian genesis we see the pardoning power now being used for political expedience.

In September 2007, the Sandiganbayan convicted former President Joseph Estrada for the crime of plunder and was sentenced to suffer the penalty of reclusion perpetua and the accessory penalties of civil interdiction and perpetual absolute disqualification.

Forfeited in favor of the government were half a billion pesos deposited in the account of the Erap Muslim Youth Foundation, almost two hundred million pesos deposited in the Jose Velarde account, and the house and lot dubbed as “Boracay Mansion” located in New Manila, Quezon City. Note that there was no recommendation for clemency.

In 2007, or a month later, former President Gloria Macapagal Arroyo pardoned former President Estrada.

There had been signs that such a pardon was forthcoming. Beating the deadline, Estrada filed a motion seeking reconsideration of his conviction. Before the Sandiganbayan could rule on his plea, Estrada withdrew his motion, effectively making his sentence of life in prison final and unappealable. Only a pardon could save him.

Now why would one defeat his own avenue for further relief in the courts unless a pardon was assured? Three days after the withdrawal of his motion, GMA pardoned Estrada, confirming news that a deal was in the making.

Estrada would never serve his sentence after conviction. He was detained pending trial because plunder is not a bailable offense when the evidence of guilt is strong.

The Supreme Court majority would later decide that the language of the pardon allowed a full restoration of Estrada’s civil and political rights. He kept remnants of his old political pull, placing second in the 2010 presidential elections, and copping the mayoralty of the city of Manila in 2013.

In the midst of the pandemic this year, US Marine Lance Cpl. Joseph Scott Pemberton quietly withdrew his petition for review in the Supreme Court, which he filed after the Court of Appeals affirmed his conviction for homicide by the Olongapo regional trial court.

Pemberton’s reason for withdrawing his appeal is that he had already “accepted” and “recognized” that the conviction would become final and executory. Lo and behold, Pemberton was pardoned by the President three months later.

The grant of pardon is not a judicial function. It is set into motion when all judicial remedies are no longer within reach, i.e., after conviction by final judgment. The withdrawal of an appeal makes the conviction final, and triggers that mechanism in the Constitution that enables the President to exercise his pardoning power.

“He (Duterte) didn’t explain who prompted him. It appeared to me that it was upon his own volition,” Justice Secretary Menardo Guevarra told the media after Pemberton’s pardon was announced last week. Really? When the essential ingredients to the stew were already being sliced and diced months ago?/WDJ

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