Limits of Duterte’s promised pardon

TO UNDERSCORE the seriousness of his campaign against illegal drugs in the country, President Duterte has repeatedly assured law enforcement authorities that he has their back in case they get into trouble in the performance of their duties.

He said he will presign presidential pardons for military and police personnel who may be sued by people whose paths they may have crossed in the course of that campaign.

This statement must have been music to the ears of the uniformed service. No president in the past has made that kind of commitment to them, and judging from Mr. Duterte’s later actions, he seems intent on living up to his word.

The power of the president to grant pardon is enshrined in our Constitution. Subject to certain constitutional limitations, pardon is an executive act that is beyond the power of the legislature and the judiciary to control or regulate. Its essence is forgiveness and extinguishment of the penalty imposed for the commission of a crime. No reason or cause has to be cited by the president to justify that action.

This presidential prerogative is a carryover of the tradition during medieval times when kings and queens, who had absolute dominion over their subjects, pardoned convicts or ordered their release from prison on the occasion of special events in their lives.

Depending on the president’s discretion, pardon may be absolute (i.e., the grantee is restored to all his or her political and civil rights without qualification), or conditional (i.e., certain conditions have to be met for it to become effective).

Before a misplaced sense of hubris gets the better of military and police officials engaged in the anti-illegal drugs campaign, it is well for them to understand that the pardon that Mr. Duterte has promised them has a critical prerequisite: It can be granted only after conviction by final judgment. Meaning, they have to be found guilty first by a court (either after entering a plea of guilt or undergoing trial) of the crime from which they are to be absolved.

Any pardon granted, whether absolute or conditional, prior to the promulgation of a guilty verdict is premature and will not have any legal effect.

Thus, if the court proceedings are completed and a pardon is granted any time before President Duterte’s term ends at 12 o’clock noon of June 30, 2022, the grantee will enjoy the benefits of the pardon.

Whoever succeeds Mr. Duterte is obliged to recognize and honor that pardon. Its effect cannot be overturned or modified by the new president, Congress or the Supreme Court.

However, if the trial commenced during the Duterte administration but the proceedings are overtaken by the 2022 elections, the fate of the military or police official who may be found guilty of the crime that he or she has been accused of will be in the hands of the new president. He or she may grant pardon or let the conviction stand.

The presigned presidential pardons that Mr. Duterte has earlier promised will be useless to their intended beneficiaries because there is no criminal conviction to which they apply.

Without a final judgment whose penal effects the pardon is supposed to extinguish, the pre-signed pardons will be mere scraps of paper.

It bears noting that the prescriptive period for murder or homicide is 20 years—i.e., either crime can be prosecuted within two decades from the time it is discovered by the offended party or the authorities. Thus, if the relatives of victims of “overzealous” military or police officials are afraid to go to court while Mr. Duterte is in power, they can wait for his term to end and seek redress for their grievances after a new president is elected in 2022.

If this happens, the accused officials will be on their own. They cannot demand or compel the solicitor general to defend them in court. They would have to pay, from their own pockets, the costs and expenses of defending themselves from the crimes they may be accused of.

In justifying this prohibition, the Supreme Court said: “… inasmuch as the State can speak and act only by law, whatever it does say and do must be lawful, and which is unlawful is not the word or deed of the State, but is the mere wrong or trespass of those individual persons who falsely speak and act in its name.

“Therefore, the accused public official should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act which cannot be attributed to the State itself. In the same light, a public official who is sued in a criminal case is actually sued in his personal capacity inasmuch as his principal, the State, can never be the author of a wrongful act, much less commit a crime.”

Whether or not the accused officials can avail themselves of the services of the Public Attorney’s Office is a big question mark because its acceptance of their case will depend on its merits.

In the effort to rid the country of the drug menace, our law enforcement officials should bear in mind that the Rule of Law continues to remain in force and effect, and there could be serious consequences for those who ignore it in the name of expediency.

Raul J. Palabrica (rpalabrica@inquirer.com.ph) writes a weekly column in the Business section of the Inquirer.