HOWIE SEE IT: Pardon and Principles

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By Atty. Howie Calleja

Once again, we are faced with the question of whether our leaders have truly acted in ways that serve our nation. With the presidential pardon of U.S. citizen Jason Pemberton, convicted of brutally killing Filipina Jennifer Laude in 2015, the public is looking for how this can be justified as an attempt to uphold justice.

No less than Article 7, Section 19 of the 1987 Constitution empowers the President with the prerogative to determine who may be granted a presidential pardon, after conviction. This pardon exempts the offender from further punishment, though the civil liability remains. Essentially, it “looks forward”; relieving someone like Pemberton of the any further consequences, and abolishing his sentence.

The very existence of this section has been recognized by one of our country’s greatest legal minds, and member of the 1986 Constitutional Commission, Joaquin Bernas, as an admission that there are imperfections in our justice system. Indeed, in the use of the power of executive clemency, there is an acknowledgment that the sentence itself was unjust. The presidential pardon was granted as a power by the Constitutional Commission as an instrument to correct infirmities in the administration of justice and to act as a sort of relief in instances of harsh application of the law. Though a fundamental principle in our legal system is “dura lex sed lex” (“The law is harsh, but it is the law”), the power to pardon allows our President to recognize when there are instances where the harsh application of the law does not necessarily bring justice to the parties involved.

Through a plain reading of our Constitution, it cannot be denied that our President has the prerogative to determine who is worthy of the grant of pardon. But surely the words of the man who drafted our reigning Constitution, who was present during the deliberations, should offer some insight? In acknowledging the Office of the President’s right to grant clemency, we must also recognize the very purpose of our Constitution in granting the Office that right. Indeed, there seems to be a contradiction with our presidential spokesperson’s statement that the President still believes Pemberton is a killer, and the purpose of the right to grant executive clemency – it being to correct an imperfect justice system. Could it be said that there was a harsh application of the law in Pemberton’s case? Or that there were infirmities in our justice system when he was handed his crime? Though the President exercises his judgment to determine the answer to those questions, the public should also review the facts of this case.

In 2015, US Marine Jason Pemberton was convicted of the crime of homicide for the killing of Filipina transwoman Jennifer Laude, and given a sentence of 10 years. Her neck had been blackened with strangulation marks and her head rammed into a toilet, with the autopsy confirming that she had been drowned to death. Ultimately Pemberton confessed to this heinous crime and stated he had killed her after learning that Jennifer was born with male genitalia.

Pemberton has since been held in Camp Aguinaldo, in solitary detention and not subjugated to the deplorable conditions of the Philippine prison system, as agreed upon by both the Philippine and United States authorities. This detention was provided for by the US Visiting Forces Agreement and, with his conditions being approved by the US authorities, it is interesting that it was not the US that deemed it “unfair”, but rather a Filipino president. After serving almost six years, the Olongapo RTC ruled he had qualified for early release under the Good Conduct Time Allowance Law, to which the Department of Justice filed a petition questioning the ruling. But that soon became moot after President Duterte’s announcement of a pardon.

Ultimately, with the facts at hand, President Duterte’s reasoning that Pemberton deserved freedom “because he had been treated unfairly”, doesn’t convince this practicing lawyer. But again, as our President, he has the freedom to determine if there actually is an infirmity in the administration of justice. It is not necessary that, in the exercise of that power, there is wisdom. The purpose of the section seems to be lost in translation, though. What is legal is not always just, indeed.

It cannot be denied that the power of executive clemency has, in the past, been used as a bargaining chip in diplomatic efforts. In the interest of unifying political forces, Presidents will use the presidential pardon to ensure continuously smooth international relations. An example during this administration would be the pardoning of two foreign nationals for the purpose of a prisoner exchange agreement with the UAE.

It’s not out of the realm of possibility that the exercise of the power to pardon was done with this purpose. Why else would an American citizen, being detained in conditions approved by United States authorities, be prioritized over those suffering in an overcrowded Filipino citizen? Why would it suddenly be a priority for our President to hand down this act of grace for a convicted American criminal when the due process for suspected Filipino drug users is not of interest to him? When speaking of sovereignty during this year’s SONA, he claimed that the Filipino people are not pawns for the pleasure of our allies, or enemies. But, the killing of Jennifer Laude is now a sacrificial pawn given to the Americans, freely. I have to acknowledge the consistency of our President; with the desire to push forward with the death penalty, the thousands of extra-judicial killings, and, now, turning a blind eye to the death of Jennifer Laude, it is clear that the loss of Filipino lives is not a priority.

If this pardon is in the interest of fairness, then why was it done seemingly out of the blue? Pemberton’s lawyer claimed she never applied for clemency and, yet, such leniency was given to a killer. The President also has the prerogative to give a conditional pardon, instead he decides on totally absolving him of any future punishment. This leniency towards what can only be categorized as a hate crime against the LGBTQIA+ community is indicative of an effort to continue allowing the discrimination they face. In our attempts to promote the welfare of our fellow Filipino, we must do our part in ending the culture of violence committed against members of this vulnerable sector of society. Though the granting of executive clemency is a prerogative and power of our President, it should be exercised with prudence, and done so in the interest of justice. The brutal killing of Jennifer Laude, and the recent presidential pardon, must never be deemed acceptable in a civilized, peace-loving society.