US Marine Joseph Scott Pemberton, convicted of homicide for brutally killing a Filipino transwoman, was granted presidential pardon without going through the long Philippine process.

The Department of Justice (DOJ) confirmed Tuesday, September 8, that Pemberton did not go through the usual procedure. Pemberton’s Filipino lawyer Rowena Garcia Flores said she did not apply for the pardon, and neither did the United States government, according to Philippine Foreign Secretary Teodoro Locsin Jr.

Justice Secretary Menardo Guevarra said the usual procedure would be to apply through the Board of Pardons and Parole (BPP). The BPP would evaluate and submit a recommendation to the DOJ, which, in turn, would assess and make an endorsement to the President.

According to a document uploaded on the DOJ website, there are 14 required documents that need to be submitted, including either a notice or a comment from the offended party – in this case, the family of slain transwoman Jennifer Laude.

But Pemberton, protected by the Visiting Forces Agreement (VFA) with the Americans, was spared from this long process.

“Nothing prevents the President from directly exercising his constitutional power to grant executive clemency at any time, because it is a personal act of grace,” Guevarra told reporters Tuesday.

For 2020, no Filipino has been granted pardon as of last figures from the Bureau of Corrections (BuCor) in July. In 2019, there were 4 pardoned convicts; in 2018 there were 5; and in 2017 there were 14. (READ: What you need to know about presidential pardons)

Of the 14 pardoned convicts in 2017, 10 were political prisoners who were granted conditional pardon when the President was still committed to the peace talks with communists, a pursuit he already dropped.

Guevarra said that from his impression, “the President’s decision to grant pardon to Pemberton was solely his own. No one prompted it.”

“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 all alone by himself,” Guevarra said.

Reporters asked whether Guevarra agreed with the President’s comments about Pemberton’s Good Conduct Time Allowance (GCTA) and what this would mean for the GCTA process as a whole, but the justice secretary no longer replied.

GCTA is presumed?

With or without pardon, Flores said Pemberton really deserved to be released on account of his GCTA, disputing accusations of preferential treatment.

“Whatever it was, I know that Pemberton is entitled to be released because based on a very objective assessment, he has already served over 10 years,” Flores told ANC’s Headstart Tuesday morning.

Duterte said Monday evening in a televised address that Pemberton had been treated “unfairly” in the computation of his GCTA.

Duterte said there was no way to know Pemberton’s behavior in jail, and that good behavior should be presumed – unless proven otherwise.

“Kasi wala namang sumbong, ‘di walang ginawa ‘yung taong masama (Since no one complained, then he did nothing wrong),” he said. 

Reporters asked Guevarra if presumed good behavior would also apply to Filipino convicts, but he gave no response.

The GCTA 2019 Implementing Rules and Regulations (IRR) says that there should be a Management, Screening and Evaluation Committee or MSEC for each facility that will “assess, evaluate, and recommend” GCTA credits to the BuCor director.

This means that the grant of a GCTA is a proactive task that requires screening – and is simply not presumed.

It is not clear whether the Joint US Military Assistance Group (JUSMAG) facility in Camp Aguinaldo, where Pemberton was detained by himself, had its own MSEC.

Certification

Court records would show that the only good conduct certification that Pemberton was able to show was from the United States Marine Corps (USMC). Court records showed the USMC certification was “issued jointly” with his guards “including a representative from BuCor.”

“We hereby attest that Lance Corporal Pemberton has met all requirements for good conduct during confinement from October 22, 2014 to the present,” said the USMC certification.

Back in August, the Office of the Solicitor General (OSG) intervened through a comment to the court contesting the USMC certification, saying that “Pemberton’s request lacks factual and legal basis (because) Republic Act No. 10592 expressly mentions the officials who are authorized to grant time allowances to convicts or detainees.”

RA 10592 authorizes only the jail directors or wardens to grant time allowances.

BuCor’s computation would have Pemberton stay in jail for another 10 months, and that’s only because of one contention – whether or not to credit the more than one year that Pemberton was detained while on trial and therefore not yet falling under BuCor jurisdiction.

In the end, the Olongapo court sided with the Pemberton camp’s computation that would have immediately released him had it not been for the DOJ stepping in and insisting that the court must resolve all appeals first before the release order can be implemented.

Before the Monday evening announcement, DOJ Undersecretary Markk Perete even said that convicts like Pemberton who were charged of a heinous crime (murder) but convicted of a non-heinous crime (homicide) must wait for the GCTA Uniform Manual to be released before they could walk free.

The Manual has been pending since 2019, putting on hold the releases of Filipino convicts who were set to benefit.

On Tuesday, Guevarra conceded that the DOJ’s appeal to stop Pemberton’s immediate release no longer matters.

“In view of the pardon, the Motion for Reconsideration has become moot and academic. The court is not expected to act on it anymore,” said Guevarra. – Rappler.com