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VERA FILES FACT SHEET: What you need to know about Pemberton’s presidential pardon

By VERA Files
Sep 11, 2020 11:52 AM

Read this fact check in Filipino


On Sept. 7, President Rodrigo Duterte granted absolute pardon to United States marine Joseph Scott Pemberton, who was convicted of homicide and sentenced to six to 10 years in prison for killing Filipino transgender woman Jennifer Laude in 2014.

Here are four things you need to know about the case:

1. What is an absolute pardon?

The 1987 Constitution empowers the president to pardon prisoners “after conviction by final judgment.” (See VERA FILES FACT SHEET: Five things you should know about presidential pardons)

It is an “act of grace” from the chief executive who “absolv[es] the person for the punishment prescribed” for the crime committed, as defined by the Department of Justice (DOJ) in a 2003 report.

There are two types of presidential pardon: conditional, granted to those who have served at least half of the minimum original sentence; and, absolute, for those who have already served their maximum sentence, been discharged, and received court termination of probation.

Once a convicted person is given absolute pardon, the person’s criminal liability is totally extinguished “without any condition,” thus restoring in full one’s civil and political rights, according to a primer of the Parole and Probation Administration (PPA), an attached agency of DOJ.

It does not, however, “erase the commission of the crime and conviction,” according to the 1989 Supreme Court ruling on the Monsanto v Factoran Jr. case. The decision states that:

“Pardon implies guilt…It does not wash out the moral stain. It involves forgiveness and not forgetfulness.”

Sources: Lawphil.net and Chan Robles Virtual Law Library, G.R. No. 78239

To be qualified for an absolute pardon, one must:

The application of a convicted person who fails to meet the first criterion may also be considered if one is seeking an appointive or elective public position, in need of medical treatment abroad that is not available locally, poised to take any government examination, or emigrating, according to a service manual provided by DOJ and PPA.

Apart from these, the Board of Pardons and Parole, tasked to review all pardon applications, lists down at least 13 documentary requirements, including clearances from the police, National Bureau of Investigation, and courts in the area where the petitioner resides, and a notice or comment from the offended party, to process an application.

However, Justice Undersecretary Markk Perete, in a Sept. 8 interview on ABS-CBN Teleradyo, said Pemberton need not go through the usual procedure as Duterte, “based on his appreciation of the facts and the arguments,” had already granted pardon to the American serviceman even without an application.

Perete said the procedure in place for “usual” pardon applications does not restrict the president from granting such executive clemency.

2. What is Pemberton’s case about?

The absolute pardon bestowed upon Pemberton stems from his conviction for killing 26-year-old Laude at a motel room in Olongapo City, Zambales, in October 2014.

In December 2015, the American soldier was found guilty of homicide for killing Laude by dunking her head in the toilet bowl of the motel room. During the court trials, he admitted to strangling Laude before dragging her to the bathroom after learning she was a transgender woman during the course of sex.

Pemberton was initially sentenced by the Olongapo City Regional Trial Court Branch 74 to six to 12 years of imprisonment, but this was eventually reduced to 10 years. He was also ordered to pay the Laude family P4.65 million in civil, moral, and exemplary damages, and other expenses.

Since he was covered under the Visiting Forces Agreement between the Philippines and the U.S., Pemberton spent his entire sentence in solitary confinement at a special military facility in Camp Aguinaldo. (See VERA FILES FACT SHEET: The Visiting Forces Agreement, explained)

On June 2, he withdrew his final appeal before the SC because he had already “accept[ed] and recognize[d]” that his conviction was “final and executory,” according to a resolution of the SC Third Division that was disclosed to the media only in late August.

Three months later on Sept. 1, Pemberton was granted an early release by the same Olongapo court despite having served only nearly five years of his six- to 10-year sentence.

The court ruled that the soldier’s supposed good conduct time allowance credits — a sentence reduction provision under Philippine law for prisoners who display good behavior — showed he had already served 10 years, one month, and 10 days in prison. (See VERA FILES FACT SHEET: Understanding good conduct time allowance for prisoners: 4 things you should know)

The Laude family and their lawyers appealed the decision of the court, saying there was no basis or record presented that proved Pemberton really exhibited good behavior inside his cell.

The judicial process was halted when Duterte granted Pemberton absolute pardon less than a week after the Olongapo court issued its order. The president’s decision was a turnaround from the Palace’s earlier position. (See VERA FILES FACT CHECK: Malacañang does about-face on releasing convicted US marine Pemberton)

3. What comes after the pardon?

The Bureau of Corrections (BuCor) said it has already signed Pemberton’s release order after receiving the official copy of his absolute pardon from DOJ on Sept. 10.

Justice Secretary Menardo Guevarra later clarified over DZMM that Pemberton will remain in detention at Camp Aguinaldo, but that his custody will be turned over by BuCor to Immigration officers for deportation.

Immigration chief Jaime Morente on Sept. 9 said Pemberton will be deported immediately once he is released and turned over to his agency from BuCor. Morente said Pemberton has a standing deportation order for being an “undesirable alien” that was issued by BI’s board of commissioners on Sept. 16, 2015.

4. How has the Laude camp responded?

In a statement posted on Facebook on Sept. 7, lawyer Virginia Suarez, counsel for the Laude family, speaking on behalf of her clients, “strongly denounce[d]” Duterte’s decision, calling it “a mockery of our judiciary and legal system [and] a travesty of Phil[ippine] sovereignty and democracy.”

She said Laude’s case “reflects the systematic discrimination and violence inflicted by [the] U.S. to Filipino women, children[,] and LGBTQ (lesbian, gay, bisexual, transgender, queer) community.”

(See VERA FILES FACT SHEET: The LGBTQ community in the eyes of Rodrigo Duterte)

In an interview on ABS-CBN Teleradyo the following day, Suarez lambasted Duterte for siding with Pemberton, saying there will be “more Jennifer Laudes” as long as foreign interests will be put first.

Lawyer Romel Bagares, a member of the Center for International Law (CenterLaw) and also counsel for the Laude family, disputed the president’s claim that Pemberton was not treated fairly, saying the American marine was “actually given…special privileges” in the Philippines under the VFA.

 

Sources

On absolute pardon

Definition of absolute pardon

Process and qualifications of absolute pardon

On Pemberton’s case

Conviction of Pemberton

Pemberton admitted choking Laude

Pemberton’s sentence reduced

Official Gazette, Agreement Between the Government of the Republic of the Philippines and the Government of the United States of America Regarding the Treatment of United States Armed Forces Visiting the Philippines, February 10, 1998 | GOVPH

Pemberton withdraws SC petition

Pemberton granted early release

Laude camp appealed Pemberton’s early release

Presidential Communications Operations Office, President Duterte on Pemberton’s pardon: I’m not favoring anybody, Sept. 8, 2020

RTVMalacanang, Press Briefing by Presidential Spokesperson Harry Roque, Jr. 9/3/2020, Sept. 3, 2020

Sources for TIMELINE: The early release of convicted US marine Pemberton

On what’s next after the pardon

ABS-CBN News, Pemberton hopes to go back to school after Duterte pardon: lawyer | Headstart, Sept. 8, 2020

ANC, Pemberton lawyer thanks Duterte for absolute pardon, assures he won’t be ‘spirited away’ from PH, Sept. 8, 2020

BuCor releases Pemberton

Pemberton to remain in Camp Aguinaldo

BI to deport Pemberton immediately

BuCor started processing Pemberton’s release

GMA News, Dobol B Sa News TV Livestream: September 8, 2020 | Replay, Sept. 8, 2020

BuCor updated Pemberton’s records

On the Laude camp’s response

Laude’s lawyer Atty. Virginia Suarez official Facebook account, This is revolting!, Sept. 7, 2020

ABS-CBN News, Duterte can’t fight foreign power, Laude camp says after Pemberton pardon | TeleRadyo, Sept. 8, 2020

ABS-CBN News Channel, The camp of slain transgender woman Jennifer Laude rejected President Duterte’s claim, Sept. 8, 2020

 

(Guided by the code of principles of the International Fact-Checking Network at Poynter, VERA Files tracks the false claims, flip-flops, misleading statements of public officials and figures, and debunks them with factual evidence. Find out more about this initiative and our methodology.)

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