Peremptory pardon

President Duterte on Monday granted absolute pardon to US Marine Lance Cpl. Joseph Scott Pemberton, who was sentenced to a jail term of six to 10 years for killing transgender Jennifer Laude in 2014.

While granting pardon to prisoners is a presidential prerogative under the Constitution, Mr. Duterte’s left-field decision to free Pemberton from criminal liability has been met, understandably, with widespread outrage and expressions of disgust.

Laude’s camp decried the decision as “a mockery of the justice system,” “a travesty of Philippine sovereignty and democracy,” and “a reflection of the country’s subservience to the US.” LGBT groups, meanwhile, slammed it as “a direct attack not just on Jennifer and her family, but also on transgenders.”

In a statement, Albay Rep. Edcel Lagman said the President’s constitutional power to pardon prisoners should not be “arbitrary nor capricious,” and should have considered the sentiments of the victim’s family.

Pemberton, who has been detained at a custodial facility in a military camp based on a provision in the Visiting Forces Agreement (VFA), was ordered released last week by an Olongapo regional trial judge who said he had fully served his sentence because of credits gained under the good conduct time allowance (GCTA) law. An appeal from the Laude family, however, stopped the Bureau of Corrections from implementing the court ruling.

Mr. Duterte invoked the same GCTA law in pardoning the US Marine. It “wasn’t the job” of the Marines to keep tabs on him so there was no way of knowing how he behaved while in detention, the chief executive said. Per the President’s logic: “Kasi wala namang sumbong, ’di walang ginawa ’yung taong masama.”

The pardon effectively swept away questions raised about the use of the GCTA law in Pemberton’s case. Laude counsel Romel Bagares said the law “does not apply in detentions and convictions under the VFA,” but as militant group Bayan pointed out, the law shouldn’t even have been cited since it was suspended in 2019 due to anomalies in its coverage of heinous crime convicts. Even the Office of the Solicitor General had opposed the ruling based on the GCTA, saying “it lacks factual and legal basis” since it should not be the court, but the jail director, who should grant it.

The pardon unleashed other questions touching on the President’s motives. According to Foreign Secretary Teodoro Locsin Jr. and Justice Undersecretary Markk Perete, the US and Pemberton did not even apply for the pardon, so what prompted the President to decide on the action “solely on his own,” as revealed by Justice Secretary Menardo Guevarra?

Was the pardon “timed to preempt the possibility of any other adverse result (on the Pemberton) case while the legal debate is still brewing” over his eligibility for GCTA credits? asked National Union of Peoples’ Lawyer president Edre Olalia. Public prosecutors were in fact preparing to contest the court order releasing Pemberton in a hearing on Monday when news of the pardon broke.

The President’s action was all the more jolting given his strident, flamboyant anti-Americanism, exemplified only months ago by his indignant termination of the VFA to protest an underling-turned-senator’s inability to get a US visa. (Mr. Duterte has since reversed his decision to end the VFA.) But here he was going the extra mile, as it were, for an American soldier convicted of the heinous crime of killing a Filipino citizen.

Vice President Leni Robredo noted the blatant unfairness in the handling of Pemberton’s case: The US serviceman enjoyed “special detention facilities, a quick public trial and appeal,” privileges denied the hungry horde who had “committed less serious crimes.” And, then, without warning to any of the parties, he got peremptorily pardoned by a President whose very own government had opposed more special treatment for the convict. The disparity sticks in the craw: “Kapag mahirap, may parusa; kapag mayaman at nasa poder, malaya,” lamented Robredo.

It’s worth remembering the blood-curdling words Pemberton used to describe his killing of Laude: “I choked it, wrapped my arms around it until it stopped moving, and dragged it towards the bathroom.”

“It.” Laude, 26, was not even human in Pemberton’s eyes. And this killer so moved the President to paroxysms of “fairness,” mercy, and forgiveness, the likes of which he seems unable to extend to ordinary Filipinos. (In the same address defending his pardon of Pemberton, he again excoriated drug suspects and justified the ruthless government war against them.)

As the Center for International Law put it, this case shows that “Filipinos have remained second-class citizens in their own country, their own welfare being secondary only to those of foreigners.”