COMMENT: Proper or Arbitrary?

The order in full:

“Whereas, this Administration has a policy of releasing inmates who have reached the age of seventy (70),

“Whereas, Joseph Ejercito Estrada has been under detention for six and a half years,

“Whereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,

“In view hereof and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive clemency to Joseph Ejercito Estrada, convicted by the Sandiganbayan of plunder and imposed a penalty of reclusion perpetua. He is hereby restored to his civil and political rights.

“The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by the Sandigabayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.”

Effectivity

This morning, October 26, Interior and Local Government Secretary Ronaldo Puno will take the order to Estrada at his estate-detention in Tanay, Rizal for his acceptance. Should he accept the order, Puno will transmit it to the Sandiganbayan. This can take only a matter of hours.

Soon after the Sandiganbayan has formally taken note of the order duly accepted by Estrada, this will be taken back to Tanay to consummate the release. Estrada can go back home a free man today, October 26.The order came very much ahead of November 7 when the sentence will become final and executory. Without the presidential intervention, the Sandiganbayan, on that day, will commit Estrada to Muntinlupa as its first president-resident.

In granting clemency, President Arroyo only exercised her constitutional power in Article VII, Sec. 19: “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.”

At Issue

At issue is not the granting of the pardon, per se. Rather, it is: Is the pardon granted to Estrada proper or is it arbitrary? The grant of presidential clemency is subject to laws and regulations.

Article VII, Sec. 19, articulates the first such rules: Presidential clemency shall be granted “after conviction by final judgment”.

In its memorandum, the prosecution quoted the law pertaining to the pardon of Estrada: “The President has the power to grant executive clemency to convicts. Upon the recommendation of the Board of Pardons and Parole, s/he can grant pardons, commute sentences, or defer the implementation of sentences.” (GMA News Research, Oct. 25)

Executive clemency by President Arroyo is governed by the “Revised Rules and Regulations of the Board of Pardons and Parole” promulgated on 26 November 2002, the second year of the Arroyo administration, and signed by her first secretary of justice, Hernando B. Perez.

Did President Arroyo, in granting clemency to Estrada, follow the revised rules and regulations of the Board? Was the Board involved in processing Estrada’s pardon?

Revised Rules

Under the “Policy Objectives” of the Revised Rules, the Board of Pardons, pursuant to its functions, so far as it may be relevant to the Estrada case:


·       “Looks into the physical, mental and moral records of prisoners who are eligible for parole or any form of executive clemency and determines the proper time of release or such prisoner on parole” (Sec. 1.1).

 

·       “Recommends to the President of the Philippines the grant of any form of executive clemency to prisoners other than those entitled to parole” (Sec. 1-3).

Three questions may be asked: (1) Was Estrada, as a detainee for six and a half years, a “prisoner” in the context of Sec. 1.1? (2) Was he already eligible for executive clemency under the Rules? (3) Did the Board recommend the grant of presidential clemency to Estrada?

What kind of pardon was granted to Estrada under the Revised Rules? As defined, “Executive Clemency” includes “Absolute Pardon” and “Conditional Pardon” (Sec. 2-m).

“ ‘Conditional Pardon’ refers to the exemption of an individual, within certain limits or conditions, from the punishment which the law inflicts for the offense he had committed resulting in the partial extinction of his criminal liability” (Sec. 2-p).

“ ‘Absolute Pardon’ refers to the total extinction of the criminal liability of the individual to whom it is granted without any condition. It restores to the individual his civil and political rights and remits the penalty imposed to the particular offense of which he was convicted” (Sec. 2-q).

Application for Pardon

A three-page letter dated October 22 and signed by his lead counsel Jose Flaminiano, Estrada’s application letter appealed: “In the highest national interest, to which President Estrada is always willing to subordinate his own, we appeal to Your Excellency to grant him full, free and unconditional pardon.” (INQUIRER.net, Oct. 23)

Estrada’s appeal was withdrawn from the Sandiganbayan to give way to the application for pardon. Explaining the move, while admitting “that there is a very slim chance that the Sandiganbayan will reconsider its original guilty verdict”, Flaminiano reasoned:

“The nation is divided because of this issue. What we need is a start of a healing process in the midst of poverty and terrorism” — warning that “Estrada’s imminent transfer from his Tanay estate to the National Penitentiary in Muntinlupa city may generate bad feelings on the part of many of our countrymen which may boil over again”. (INQUIRER.net, Oct.23)

Proper of Arbitrary?

The application might have been unexpected on that day, October 22, but it was not undesired or unanticipated. Before Estrada filed his appeal with the Sandiganbayan, President Arroyo had gone out of her way to encourage Estrada to apply in writing for pardon for the same reasons as Flaminiano cited. Her elation on receiving the October 23 application was anticlimactic.

Acting Justice Secretary Agnes Devanadera received the pardon letter of application at 4 p.m., October 23, with the instruction “to process [it] and make the necessary recommendation as soon as possible”. In two-day’s time – at 5:30 p.m., October 25, the order to pardon was being read by Bunye in a press conference on national television.

Obviously, the Board of Pardons and Parole had been by-passed. But looking at the Estrada case, what was there that the Board could do? Estrada was not yet a prisoner; he has no records for the Board to examine. The Board was irrelevant to the haste to pardon Estrada.

In fact, it could be asked: Was the President’s order really on the recommendation of the acting justice secretary?

Take a close look at the order:

It says that “this Administration has a policy of releasing inmates who have reached the age of seventy (70)”. This is a policy going back to earliest administrations. Will the President order the release of all prisoners in Muntinlupa at the age of 70? The policy must apply to all.

Estrada was ordered pardoned for his having “been under detention for six and a half years”. Under the Rules, no prisoner is released just for having been under detention. For prisoners “sentenced to one or more Reclusion Perpetua or Life imprisonment”, they should have served “at least fifteen (15) years” before qualifying for executive clemency.

Estrada was also ordered pardoned for his having “publicly committed to no longer seek any elective position or office”. Is he a criminal or political prisoner? But even political prisoners are not pardoned for just making such public commitment.

What should merit pardon is true contrition for the guilt committed against the “People of the Philippines”. No such contrition was expressed by Estrada in his letter of application. The President’s order was silent on contrition. Why pardon him if he was not sorry for his guilt?

The order stated: “I hereby grant executive clemency …” The avoidance of the specific “absolute pardon” is understandable. There is no full restoration of Estrada’s civil and political rights. He cannot seek any elective office; his forfeited properties were not remitted to him. The pardon granted is not “full, free and unconditional” as asked.

Estrada was pardoned not according to the “Revised Rules and Regulations” but according to what President Arroyo wanted. I think the pardon was most improper, most arbitrary – in compete disregard of governing laws and regulations. Arroyo abused her constitutional power.

What do you think? 

("Comment" is Mr. Patricio P. Diaz' column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a "Lifetime Achievement Award" for his "commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate." You can reach him at [email protected])

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