The machismo maneuver
The President has never been shy about using his power to pardon. He views it less as an “act of grace,” which is how the power to pardon is poetically described in legal literature, and more as part of his patronage toolkit. For example, practically from the moment policemen began to be challenged over their handling of the so-called “war on drugs,” the President fiercely, and uncompromisingly, guaranteed an automatic pardon to any cop convicted of killing drug suspects — with the caveat that there should be some sort of basis to argue it was done in self-defense in the line of duty.
This is why no pardon was forthcoming for the cops convicted of killing Kian delos Santos: It was too obviously premeditated and, thus, had to be punished as much for its stupidity as for its unpopularity, from the President’s point of view, at least. But so long as cops did as they were told, in the way they were told to do it, then no cop should fear legal retribution— “I have the ultimate get out of jail free card,” was, and is, the President’s pledge.
We shouldn’t overlook another aspect of the power to pardon, which is that it is a legal fix for a messy situation. If there is one thing former and current assistant city fiscals know how to do, it’s finding a legal fix for practically any problem. That favors are the currency of power may or may not provide a bonus, as the case may be. One thing is sure: A favor, for any official, is much easier to do, if one is sympathetic either to the favor-seeker or the person for whom the favor is being done. Put another way: It’s easier to ask for a favor involving a case or a person for whom one thinks the favor-granter would be inclined to be sympathetic.
The secretary of foreign affairs says the US Embassy did not try to exert pressure to get Joseph Pemberton a pardon and that the soon-to-be ex-US ambassador was surprised when the President told him he’d pardoned Pemberton, when the ambassador paid his farewell courtesy call. All we know of, as far as signs of official American interest in an early release are concerned, was a submission from the Armed Forces of the Philippines (certifying the prisoner was in their custody) and the United States Marine Corps containing the views of some Filipino officials that Pemberton was qualified for reduced time based on Philippine law.
From the news reports, what was in contention was 10 months of incarceration. Pemberton’s lawyers calculated that according to the law allowing early release for good behavior, Pemberton was qualified to be released last July. The government argued that release would only be possible 10 months later. The Olongapo judge—Olongapo RTC Presiding Judge Roline M. Ginez-Jabalde — settled the matter, lest we forget, by deciding in favor of Pemberton’s lawyers and ordering his immediate release.
When the judge supported Pemberton’s lawyers’ argument that Filipino officials were being stingy in calculating the time that should be subtracted from Pemberton’s sentence for ostensibly good behavior, and that Pemberton, as a result, should be ordered released, the Department of Justice was prepared to object and ask for a reconsideration of the judge’s decision. (The judge wrote that factoring in time in detention during trial, plus GCTA calculations, Pemberton had actually served “10 years, 1 month and 10 days which is more than the 10-year maximum penalty imposed by this court”). Then the President intervened, and the Department of Justice’s option to ask for a reconsideration of the Olongapo judge’s decision vanished.
The interested, because relevant, parties, then, seems to be the institutions that submitted documents in favor of the convict: the Philippine and American militaries. Their approach, however, seemed to hinge on a preferential application of our law on good behavior for a specific convict and not for all prisoners (preferential because accusations of corrupt implementation led to a mass recall of prisoners who were released on the basis of reduced sentences by virtue of the law). Which is relevant only in that it suggests who might have bothered to bring the case up to the attention of the President. Why should he decide to intervene? His anti-Americanism is notorious. But it’s limited by the clout of the Armed Forces, which saved the VFA, for example.
The swift action of the President, and his easy explanation of why he issued the pardon, suggests he didn’t find it difficult to grant it. If there is one thing that can trump an instinctive anti-Americanism, it’s the kind of machismo that would sympathize with Pemberton and view his punishment as excessive in the first place, making it an easy ask for the military, and an easy give for the President.