Tuesday, October 30, 2007

I beg your pardon?

Much has been said about the presidential pardon on former president Joseph Estrada. While the presidential act is legally defensible, the majority of the Filipinos believe it is morally wrong because it was dictated by political considerations. It was said the granting of pardon was not an act of grace but an act of disgrace to the Presidency. It demeaned the gracious privilege of executive clemency.
For reference, here are some of the FAQs on pardon.

1. What is the legal definition of pardon?

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. (U.S. vs. Wilson, 7 Pet. 150)

It is an act of pure generosity of the executive and it is his to give or to withdraw before it is completed. No legal power can compel the executive to give it (De Leon vs. Director of Prisons, 31, Phil. 60)

2. What is absolute and conditional pardon?

Absolute pardon is the total extinction of the criminal liability of the individual to whom it is granted without any condition; it restores to the individual his civil and political rights and remits the penalty imposed for the particular offense of which he was convicted.

Conditional pardon is an exemption of an individual, within certain limits or conditions, from the punishment which the law inflicts for the offense he had committed resulting in the partial extinction of his criminal liability.

3. Who may grant pardon?

The 1987 Constitution vests the power to grant pardon only to the President.

4. What are the constitutional provisions on pardon?

Article VII
Executive Department

SEC. 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.

Article IX
Constitutional Commissions

C. The Commission on Elections

SEC. 5. No pardon, amnesty, parole, or suspension of sentence for violation of election rules, and regulations shall be granted by the President without a favorable recommendation of the Commission.

5. What are the specific limitations on the pardoning power?

1) Pardon can be exercised only after final conviction.

2) Pardon can be granted for election offenses only upon the recommendation of the COMELEC.

3) Pardon may not be granted in cases of impeachment.

4) Pardon cannot be granted in cases of civil and legislative contempt.

6. Was GMA’s granting of pardon to former president Estrada legal?

Yes, because : 1) Estrada was convicted by final judgment; 2) he was not impeached; 3) he did not violate election laws, rules and regulation; and 4) he was not cited for contempt.

7. There is a school of thought that Estrada should not have been pardoned because he was impeached. It this correct?

No. According to eminent constitutionalist Fr. Bernas, prohibition regarding cases of impeachment can have applicability only if the impeachment process had ended in the imposition of a punishment, which it did not. Joseph Estrada received no punishment from the impeachment that was started against him. The impeachment process was never concluded. In fact, even if it had been concluded, the only punishment he could have received would have been removal from office and disqualification from holding office in the government.

7. May a judicial challenge to the validity of pardon of Estrada prosper?

Fr. Bernas offers the following explanation :

We do have that provision in the Constitution which says that judicial power includes the power “to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any instrumentality of agency of the government.” We know and we have seen this applied to independent bodies like the Commission on Elections, the Commission on Appointments and the Electoral Tribunals. It can be applied by the Court to the President even if ever so gingerly.

Did President Arroyo commit such grave abuse of discretion? If we must go by the prescriptions of the Supreme Court, as indeed we must, we will see that it is not easy to commit such mortal sin.

Ponder how the Supreme Court has defined such grave abuse. “By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.”

Anyone challenging the validity of the pardon of Estrada will have to measure the action of President Arroyo against this definition. It will not be a walk in the park.

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