Is Pemberton, an American soldier, even covered by GCTA law?

As the Laude family questions the existence of a good behavior record of convicted US Marine Joseph Scott Pemberton, one of their lawyers pushed the issue further – is the American soldier even covered by the Good Conduct Time Allowance (GCTA ) law?

"Ordinary convicts deserve the graces of the GCTA law. Pemberton doesn't," international law professor Romel Bagares told Rappler Thursday, September 3. Bagares is also one of the Laude family's lawyers.

An Olongapo court gave Pemberton a perfect GCTA score, and granted him early release 4 years ahead of his full 10-year sentence over homicide for killing transwoman Jennifer Laude.

The Laude family has filed a motion for reconsideration questioning how Pemberton's GCTA was computed, given that he was in isolation at a special facility in the military headquarters in Camp Aguinaldo.

But Bagares said Pemberton is not even covered by the GCTA law, based on the principle of equal protection and the conditions of the Visiting Forces Agreement (VFA).

The Supreme Court made GCTA retroactive, ruling that all convicts in all periods of time must enjoy the perks of the law because of equal protection. In legal principles, equal protection does not apply if there is substantial distinction.

In this case, the VFA is the substantial distinction, said Bagares.

"The Court said equal protection does not apply in detentions and convictions under the Visiting Forces Agreement; there is a substantial difference in treatment between someone under the VFA and an ordinary convict. Thus, a different modality applies to Pemberton," said Bagares.

Bagares was referring to the 2015 decision of the Supreme Court in Laude vs Jabalde where justices allowed Pemberton to be kept in Camp Aguinaldo to honor the agreement under VFA.

In that case, the Supreme Court said: "The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused."

"The SC is clear in that case that (Pemberton) cannot claim equal protection as to claim coverage of the GCTA law. He is under the VFA. The conditions for availment of benefits under the GCTA law do not contemplate Pemberton’s sui generis (a case of its own) situation," said Bagares.

GCTA is not part of VFA

The second issue Bagares pointed out is that the 2012 GCTA law was never agreed upon in the 1999 VFA.

The Supreme Court said in the same case: "The rule in international law is that a foreign armed forces allowed to enter one's territory is immune from local jurisdiction, except to the extent agreed upon."

Bagares said the VFA only discussed a place of detention – it never discussed coverage under GCTA.

"We argue from the tenor of the Court’s ruling that such agreement must be specific and express – if it does not and did not include GCTA allowance for Pemberton, then he cannot claim it," said Bagares.

The Department of Justice (DOJ), which revised the internal rules of the GCTA to exclude heinous crime convicts, has yet to respond to these questions as of writing.

There is also no update as of writing when Pemberton is expected to be released, but the Bureau of Corrections (BuCor) said it received the court's order Wednesday, September 2.

Who computed Pemberton's GCTA?

Under the GCTA law, or Republic Act 10592, it's the BuCor Director who should grant the credits.

According to Virgie Suarez, another lawyer for the Laude family, BuCor had a different computation.

"From the BuCor's computation, Pemberton still has to be imprisoned or serve sentence for 10 months. But all these, again, were not considered. What was considered is the computation submitted by Pemberton," Suarez told CNN Philippines' New Day on Wednesday.

The question of who should be followed in computing the GCTA was also asked of the DOJ, but Justice Secretary Menardo Guevarra told reporters Tuesday evening that "we’ll try to answer your questions on Pemberton as soon as we receive a full report from the office of the City Prosecutor of Olongapo."

Pemberton's lawyer Rowena Garcia Flores maintained that the American soldier is covered by GCTA, but her arguments were limited to the question of how much time is deducted from one's sentence because of the law.

"But this treatment of prisoners is governed by law, so if they say, for example, that there was improper crediting or improper granting of the GCTA, then I think the proper venue for them would be the House of Representatives and the Senate," Flores told CNN Philippines.

Pemberton, 19 years old at the time and among US troops who visited and docked in the Philippines for military exercises, had oral sex with with Laude, but killed her by arm-locking her and dunking her head in the toilet bowl after finding out she had male genitals. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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