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Oct 29

The Explainer: Executive Clemency

That was a scene from “The Last Emperor,” where the enthronement of a new child-emperor is heralded by the vast imperial bureaucracy kowtowing to their absolute monarch.

In ancient societies, kings and emperors were judges, juries, and executioners all rolled into one.

Today, the power of presidents to grant pardons, is a reminder that in the past, justice was usually in the hands of one man, and therefore, mercy was as much a matter of a king or emperor’s whims, as was the administration of justice.

As the nation furiously debates the President’s pardon of her predecessor, our task tonight is to review the power the president exercised, and how her predecessors handled similar situations.

I’m Manolo Quezon. The Explainer.

 

I. I pardon you

 

I’d like to frame our discussion by means of two scenes from the film, “Schindler’s List,” Steven Spielberg’s masterpiece about the Holocaust.

In this first scene, Oskar Schindler talks to Amon Goeth, the psychopathic Nazi killer of Jews. Schindler makes an appeal to Goeth’s vanity, in an effort to convince him that his absolute power can be tempered by restraint. Let’s watch.

Goeth: You know, I look at you. I watch you. You’re not a drunk. That’s, that’s real control. Control is power. That’s power.

Schindler: Is that why they fear us?

Goeth: We have the f–king power to kill, that’s why they fear us.

Schindler: They fear us because we have the power to kill arbitrarily. A man commits a crime, he should know better. We have him killed and we feel pretty good about it. Or we kill him ourselves and we feel even better. That’s not power, though, that’s justice. That’s different than power. Power is when we have every justification to kill – and we don’t.

Goeth: You think that’s power.

Schindler: That’s what the emperors had. A man stole something, he’s brought in before the emperor, he throws himself down on the ground, he begs for mercy, he knows he’s going to die. And the emperor pardons him. This worthless man, he lets him go.

Goeth: I think you are drunk.

Schindler: That’s power, Amon. That is power. (Schindler gestures toward Goeth as a merciful emperor) Amon, the Good.

Goeth: (He smiles and laughs) I pardon you.

 

In the second scene, his ego suitably stroked, Amon Goeth encounters a stable boy named Liesek who makes the mistake of leaving Goeth’s expensive saddle on the ground.

Goeth pardons him. Then he encounters a female prisoner smoking on the job –and pardons her. Liesek then makes a mistake cleaning Goeth’s bathtub, and miraculously receives another pardon.

But as we’ll see, mercy isn’t something psychopaths can fully enjoy. Let’s watch.

Here is the dilemma, then, between what pardoning is supposed to achieve –tempering justice with mercy- and the pardoning power being in the hands of those who may not wield power with either justice or mercy in mind.

 

Our Constitution says,

Article VII, Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_id=90275

 

Fr. Joaquin Bernas explained the concept of Executive Clemency this way. He says, we should understand it as an inheritance from the American system of justice, in turn inherited from the British, who viewed the pardoning power in terms of the ancient prerogatives of their kings.

The power of heads of state to temper justice with mercy, can take two forms, according to Bernas. Put together, the power of the president is called Executive Clemency. Executive Clemency can be in the form of a pardon, which in turn can be absolute or conditional.

An absolute pardon, Bernas says, is immediate and total: the person pardoned doesn’t have to accept it. A conditional pardon, however, only goes into effect, if the person being pardoned accepts it.

Or executive clemency can in the form of an amnesty proclamation, which only becomes effective if approved by Congress. Generally, amnesties have been used as a solution to political problems, whether collaboration with the Japanese, or rebellion against the State. Pardons, however, are often viewed as applicable to individual and not group cases.

Are there any limits to the President’s pardoning power, besides what we’ve discussed? Yes, but they’re very few.

He says there are only three limitations on the pardoning powers of a President. Let me read to you what Bernas wrote last Monday:

First, unlike in the American system, it can be exercised only after final conviction. Second, pardon can be granted for election offenses only upon the recommendation of the Commission on Elections. Third, pardon may not be granted in cases of impeachment.

 

 

Bernas was referring to the American presidential practice of issuing pardons to individuals even before they’ve been accused of a crime. For example, President Gerald Ford pardoned Richard M. Nixon, effectively preventing Nixon from being charged after he left office.

http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_id=97357

 

Bernas then asks, but beyond these broad rules, does the Constitution tell us how Presidents should use their pardoning powers? He says, no. It is such an absolute power, dating back to the absolute power of kings, that whether done on a whimsy or after much thought, once a President grants a pardon, there’s really nothing we can do.

But what I think we can do, is look at how other presidents have used their pardoning power.

When we return, our previous presidents and their attitudes towards pardons.

 

II. Tempering justice with mercy

 

In “A Man for All Seasons,” Thomas More demonstrates that there is no need for sweeteners, if justice is to be dispensed, as he puts it, as if each case involved his own daughter, and with swiftness yet true justice. This is what sets apart, or should set apart, impartial justice administered by civil servants, from the whims of a king.

Let’s go to Malacanan Palace, which is full of reminders of the importance of executive clemency.

It’s not often that you see a picture and someone tells you what was going through their mind, as that picture was taken.

But we can do that, in the case of this picture.

The moment captured in this photo by the official photographer on November 15, 1935, is described by Manuel L. Quezon as follows. Pat, would you like to read?

As I stepped out of the presidential car and walked over the marble floor of the entrance hall, and up the wide stairway, I remembered the legend of the mother of Rizal, the great Filipino martyr and hero, who went up those stairs on her knees to seek executive clemency from the cruel Spanish Governor-General Polavieja, that would save her son’s life.  This story had something to do with my reluctance to believe that capital punishment should ever be carried out.  As a matter of fact, during my presidency, no man ever went to the electric chair.  At the last moment I always stayed the hand of the executioner.

-Manuel L. Quezon

in his autobiography, “The Good Fight”

 

Research by the director of the Malacanang Museum, Jeremy Barns, has determined that Dona Teodora Alonso and her daughters -though it is debated whether she, and not just her daughters, actually went- didn’t get as far as the gate, where a secretary of the Governor-General eventually talked to them, was given a message, relayed it to the Governor-General, and who eventually told them their appeal would be rejected.

Whatever the actual circumstances, for the generation alive during the revolution and beyond, the image of that great lady ascending Malacanang’s stairs on her knees was a powerful one, made even more potent by the fact that it would have been such a Filipino thing to do: what mother would not abase herself to beg for her son’s life, particularly when the law is inexorably -and unfairly- enforced?

And this points to the reason our presidents have eagerly used their pardoning power. After centuries of an essentially alien and arbitrary legal system, Filipino chief executives had to prove they were more capable of dispensing justice, than their predecessors, the foreign governors-general.

Quezon himself liked going to New Bilibid prison and gathering the convicts to hear their appeals. Press accounts of the time record his listening to the appeals and deciding whether to grant clemency on the spot.

For political crimes, though, he was more inclined to be cautious than in judging the cases of the poor.

The Supreme Court on October 26, 1932, upheld a lower court’s ruling resulting in twenty communist leaders eight years and one day of “destierro” or banishment to the provinces. The American communist James Allen, in pursuit of a united front policy against fascism, approached Quezon for the internal exile to be lifted. This was granted on December 31, 1936. An absolute pardon was granted on Christmas Eve, 1938. There was no rush to clemency.

This distinction between the need to swiftly grant clemency to the poor, and the need to temper official clemency with prudence in the case of political crimes, has a tangible symbol in the Palace.

There is another reminder of the power to pardon, and that is a large table made of the finest native hardwoods, that is the central feature of the Reception Hall of the Palace. It was carved by ex-convicts as a present to President Quezon. The convicts carved their prisoner into table to remind the recipient of who they were –people who had received executive clemency.

The table was a focal point of the Palace’s Reception Hall until Marcos. It became the dining table at Arlegui during the Aquino and Ramos administrations, and was returned to the Palace by President Estrada to serve as a dining table, until President Arroyo restored it to its traditional place for a time. Now, she uses it as a dining table again, literally feasting on the gratitude of convicts.

These symbols in the official residence of our presidents points to the importance of the power to pardon and commute, and it is one our presidents should not take lightly.

In a country where every chief executive makes a personal commitment to “do justice to every man,” it is a powerful reminder of how our presidents are viewed as having a personal relationship with every citizen. I cannot think of any president who did not use the power to pardon and commute sentences, but most exercised this power with a bias for the poor, and greater prudence in the case of political crimes.

President Manuel Roxas didn’t pardon people accused of treason, but did issue an amnesty proclamation covering acts of treason, with the concurrence of Congress. In 1948, Jose P. Laurel could accept amnesty, because up to then, it didn’t require an admission of guilt.

President Elpidio Quirino, in an effort to prevent civil war, tried offering amnesty on June 21, 1948 to the Hukbalahap,  but by August that year, negotiations had broken down.

But since 1963, accepting amnesty, according to the Supreme Court, requires an admission of guilt, which has made it less effective, Bernas says, as a means to heal past divisions.

Where Quirino was more successful was in granting pardon to Japanese war criminals.

Quirino pardoned Japanese prisoners convicted of crimes against the citizenry during the occupation. The public, in general, accepted Quirino’s granting executive clemency to foster the healing of the wounds of the war. Quirino had the moral ascendancy to grant such a pardon because the Japanese had killed his wife and all but two of his children. If a President, who’d suffered so harshly at the hands of the Japanese could find it in his heart to forgive them in the nation’s name, the nation could accept it.

Ramon Magsaysay criticized many pardons granted by his predecessor, Quirino, but also granted pardons to the poor and to former Huks willing to surrender to the state. President Carlos P. Garcia in turn, was criticized by Diosdado Macapagal for freely granting pardons shortly before he left office.

In his memoirs, President Diosdado Macapagal said from jail, Huk leader Luis Taruc  petitioned Macapagal for executive clemency, and for a general amnesty to political offenders. In exchange, Taruc said former rebels would support Macapagal’s social welfare program. Macapagal refused.

There was one spectacular case where Macapagal provoked outrage on the part of the public, because, the public felt, Macapagal used his powers to get someone off the hook.

The Lucio Tan of the 1950s and 1960s was an American named Harry Stonehill, a bigshot in the tobacco business. The late Jose W. Diokno, serving in Macapagal’s cabinet, mounted an investigation that revealed Stonehill had been freely, and lavishly giving financial contributions to dozens of prominent politicians, including Senate President Marcos and possibly Macapagal himself.

Arrest and trial would have devastated the political class. But the public outrage was so strong, Stonehill had to be arrested. On August 3, 1962 Macapagal ordered Stonehill deported. And then, Macapagal fired Diokno.

Marcos used his powers tactically, of course. He eventually released Taruc from jail and thereby gained the former Huk leader’s support. He allowed Ninoy Aquino to seek medical treatment abroad, on condition Aquino refrain from participating in politics, a condition Aquino promptly ignored once in exile.

President Aquino released political prisoners and then found her government constantly under attack from those she freed.

President Ramos arranged amnesties for the Aquino era rebels, most particularly the Left, Muslims, and Rightist soldiers. This enabled political closure but not, as the book “Closer than Brothers”, discusses, moral closure for the military’s human rights violations.

President Estrada, too, preferred to restore Marcos’s allies to authority, since he was a Marcos loyalist himself. He and President Arroyo both tended to view pardons and amnesties from a purely pragmatic, political perspective.

When we return, we’ll ask a professor of law, who happens to have had political experience, too, to discuss what limits, if any, should be placed on the pardoning power.

 

My view

 

Justice must always be tempered with mercy. It is better to err in favor of too much kindness, in a country like ours, where kindness is something all too rarely experienced by the vast majority of our people. Those who shriek over a pardon have never experienced how a pardon is, sometimes, the only form of justice the ordinary Filipino gets to experience.

That being said, it is not too much to have expected former President Estrada to have taken his medicine like a man, and endured even New Bilibid itself if he was so sure he was innocent. The truth is, he gave up; he preferred his own freedom to being a symbol; yet by doing so, forgot that is why he’d become president and wasn’t just another fading matinee idol.

Like the old Bobby Brown song, the President can insist pardoning is my prerogative. She’s right. But she’s also head of state, and her powers first and foremost are exercised precisely to temper the cold steel of the law. She believed that it was better to close the chapter on Estrada, than to prolong the whole drama. She may be right. Because, now, she’s all alone, on center stage. And now, no one seems to be clapping or asking for an encore.

 

 

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