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Showing posts with label ABSOLUTE PARDON. Show all posts
Showing posts with label ABSOLUTE PARDON. Show all posts

Monday, November 28, 2016

ABSOLUTE PARDON_RESEARCHED REFERENCE



COMMENTARIES ON PDI PETER WALLACE’S “WHAT HAS THE SUPREME COURT DONE?” FROM A PERSPECTIVE OF THE RULE OF LAW

Rule-of-Law
NEWSPAPER ARTICLE:
Philippine Daily Inquirer columnist Peter Wallace wrote:The Supreme Court has disappointed again. It seems to see its role as that of a judge, of a strict interpreter of the word of the law. But I see that as the role of lower courts. The Supreme Court stands above that with its role as the final arbiter of the health of society, of what is best for the country. A pardon exonerates you of a crime and gives you full civil rights again because one person says so. One person who has not studied the case in the detail that the courts do is not deciding on informed judgment, but on political considerations. It raises the question: Is this country a democracy, or a dictatorship? Because allowing one uninformed person to overrule the judgment of an established court of law is what is done in dictatorships. If it’s allowed in the Constitution, then the Constitution needs to be changed. Or presidents need to be far more circumspect. The Constitution doesn’t mandate you give pardons, only that you can. So it shouldn’t be done for political reasons, but only for genuinely deserving or compassionatereasons.Sadly, the Supreme Court allowed adherence to strict interpretation of the words of the law to overrule good common sense and what is best for society. A man convicted and found guilty of stealing the people’s money (it’s reported that he still owes the government over P400 million) should be in jail, not in public office. No matter what the high court said, Joseph Estrada was found guilty of plunder, a crime that used to be punishable with the death penalty (now a lifetime in jail suffices). As Justice Marvic Leonen said, “[He] is a man who, tormented with recriminations of massive corruption and failing to exculpate himself in the eyes of the Filipino people, was left with no recourse but to leave the Presidency. He stood trial for and was convicted of plunder: a conviction that endures and stands unreversed.”In the pardon given to Estrada, there’s a “whereas” clause that says he “had publicly committed to no longer seek any elective position or office.” Eleven of 14 justices put this aside, saying that the dispositive section of the pardon was what must be interpreted, and this said “he is hereby restored to his civil and political rights.” They felt that restoration of civil and political rights meant everything, including running for public office again. But if so, why was that “whereas” clause there at all? It should have been deleted as irrelevant. And why wasn’t the word “full” put in front of “civil…” if running for office again was intended? My interpretation is that because he’d agreed to not run for public office anymore, he could in all other ways be treated like a normal citizen, but only if he kept his word and didn’t run for public office.An inexplicable pardon doesn’t say Estrada’s innocent; it only says that he doesn’t have to suffer the penalty of which he’s charged. He’s still guilty. What doesn’t the Supreme Court understand about that?And Justice Leonen agrees with me, as (although I’ve not yet read their decisions) do the other two justices I respect: Chief Justice Maria Lourdes Sereno herself and Associate Justice Tony Carpio.Justice Leonen said: “The person convicted of plunder now walks free among us. He did not spend a single day in an ordinary jail.” He went on to say: “This is a template for our political elite at the expense of the masses who toil and suffer from the consequences of corruption. It is hope for those who occupy high government offices who commit crimes as they await a next political term when the people’s vigilance would have waned. It is the denouement in a narrative that will explain why there is no effective deterrent to corruption in high places.” He said much more in the same vein, lambasting, if I may use the term, his fellow justices for not considering the wider, more important picture. Which is not only that a guilty man has been allowed to assume an office of public trust but also that others can feel free to do so, too. It reopens the gates of corruption that President Aquino has been trying so hard to close. As a Mr. Carlos Isles stated so well in a letter to the editor in the Inquirer (1/28/15), “My professional education in one of the highest institutions of learning in this country has taught me that what is legal may not always be moral. And that if big decisions, like the recent act of the Supreme Court removing all obstacles for Joseph Estrada to continue as mayor of Manila, then it is not hard to understand why this country is what it is at present—without a moral compass. As a senior citizen still struggling and hoping for a better future for the Philippines, I think the decision of the Supreme Court is disgusting, to say the least.” What’s worrisome is that the people don’t seem to care.Asthe Inquirer editorial of Jan. 23 said, “Indeed, Estrada tests the limits of Philippine democracy, and it is hard to guess how long it will take for the Filipino voter to vote wisely, or, until then, whether our courts will have the gumption to defy the political winds.”The main question, to my mind, is this: Should the justices who favored Estrada’s continuation in office base their decision only on legal grounds? Every human being is not only a legal construct. He is also a moral one and the high court should have an equal eye on moral reasons for every decision it makes. For the sake of society’s future, it should reconsider.
 COMMENTARIES:
In a blog titled SUPREME COURT AS AN AGENT OF THE RULE OF LAW, it stated that “Supreme Court is the highest court of the land. It is the court of last resort, the final arbiter of all legal question properly brought before it. Its decision in any case constitutes the law of that particular case under the principle of stare decisis. Once the Supreme Court renders a judgment, it becomes final that is binding on all appellate courts and inferior courts beyond their power and authority to alter or modify. It is in this sense that Justices of the Supreme Court are infallible. In Brown v. Allen, 344 U.S. 443, U.S. Supreme Court Associate Justice Robert Jackson described the Supreme Court to be “we are not final because we are infallible, but we are infallible only because we are final.” Supreme Court Justices can never err on legal issues. If they did, without them correcting their legal error, their collective wrong decision is called as the “Supreme Error”. Still, it became a part of the law of the land”. Thus, the Supreme Court can rule to disqualify a pardoned convicted plunderer if it wants to as a final arbiter of legal question. It did not. It may be morally right to disqualify a convicted plunderer who was pardoned but it is legally right not to disqualify a convicted plunderer who was pardoned.
 Was the dismissal of the petition to disqualify former Joseph Estrada proper? The answer is in the affirmative.
 A Judge is constitutionally mandated to render a decision by expressing therein clearly and distinctly the facts and the law on which it is based (Article VIII, Section 14, 1987 Constitution). In ascertaining the facts, a Judge is required to search, to know and to establish the truth by a legal tool known as  Evidence, the means sanctioned by the Rules of Court of ascertaining in a judicial proceeding the truth respecting a matter of fact (Rule 128, Section 1, Revised Rules of Court).  Untruthful facts lead to erroneous decision – making. An erroneous Judgment is a source injustice contrary to the sole duty of the Judge that is to give right and just Decision to a given case. When the truthful facts are searched, known and established in a trial court, a Judge has a duty to apply the right laws and jurisprudences. Misapplication of laws and jurisprudences to the facts is also a source of injustice because it results into a wrong, not necessarily bad, judgment.
 In the disqualification case of former  President Joseph Estrada, the sole proof presented by the petitioners is the FULL TEXT OF THE PARDON, to wit:
XXX                             XXXX                           XXX
WHEREAS, this Administration has a policy of releasing inmates who have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and a half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by the Constitution, I hereby grant executive clemency to JOSEPH EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and imposed a penalty of Reclusion Perpetua. He is hereby restored to his civil and political rights. The forfeitures imposed by the Sandiganbayan remain in force and in full, including all writs and processes issued by the Sandiganbayan in pursuance hereof, except for the bank account(s) he owned before his tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this pardon shall take effect.
Given under my hand at the City of   Manila, this 25th Day of October, in  the  year of Our Lord, two thousand   and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.) Acting Executive Secretary
 In the foregoing proof, with due respect to the brilliant dissenters and pundits, it favored the respondent former  President Joseph Estrada. A plain reading of the wordings of Executive Clemency showed an absolute pardon. The   WHEREAS clause is a reason not a condition of a pardon. A WHEREAS is an introductory statement of a formal document like an Executive Clemency. In a legal sphere, the WHEREAS clause is also used as a recital containing the words of introduction to a contract, statute, proclamation, or other writing. “ In a contract, for example, a WHEREAS  clause is an introductory statement, meaning, “considering that” or “that being the case”  that explains the reasons for the execution of the contract and, in some cases, describes its purpose. It is not an essential component for its operative provisions. Also, WHEREAS CLAUSE is often used in official proclamations to project the solemnity of the occasion in an archaic legal formalism. It is not the WHEREAS clause but the dispositive portion that controls in reading the whole text of the pardon. There is no need to interpret the text by logic. What is its dispositive portion? This sentence: “He is hereby restored to his civil and political rights.” It is an absolute pardon.  The sentence is not qualified by any condition. There are no conditional conjunctions in sentence such as If only (he will not run again), In the event (the WHEREAS Clause of not running is breached, pardon is revoked automatically), Only if (He will not run again, this pardon applies), On the condition that (He will not run anymore), Provided (He will not run) as soon on and so forth. The pardon granted to respondent, who was convicted for plunder, was absolute without any attached conditions. A President can grant an absolute pardon even without any reason at all. Assuming there are no WHEREAS Clauses stated in the pardon, a President can still give an absolute pardon to the respondent. The petitioners have recourse to present former President Gloria Macapagal – Arroyo as their lone witness to support their contention that a Conditional Pardon was given to former President Joseph Estrada. They did not present her testimonial evidence like a notarized affidavit to prove that she gave a conditional pardon to the respondent. The petitioners did not present any proof that the pardon was conditional other than their own interpretation of the full text of the pardon, which is not a proof that favors them. “The basic rule is that mere allegation is not evidence and is not equivalent to proof. Charges based on mere suspicion and speculation likewise cannot be given credence.  Hence, when the complainant relies on mere conjectures and suppositions, and fails to substantiate his allegations, the administrative complaint must be dismissed for lack of merit” (Manalabe v. Cabie, 526 SCRA 582, 589;  Adajar v. Develos, 475 SCRA 361, 376-377; Ong v. Rosete,  441 SCRA 150, 160; Datuin, Jr. v. Soriano, 391 SCRA 1, 5). If petitioners allege that the full text of the pardon is conditional, they must support their allegation with evidence other than by their own interpretation of it which is objectionable for being self-serving. “The phrase “self-serving evidence” is a concept which has a well-defined judicial meaning. The common objection known as “self-serving” is not correct because almost all testimonies are self-serving. The proper basis for objection is “hearsay”. Self-serving statements are those made by a party out of court advocating his own interest; they do not include a party’s testimony as a witness in court. Self-serving statements are inadmissible because the adverse party is not given the opportunity for cross-examination, and their admission would encourage fabrication of testimony. This cannot be said of a party’s testimony in court made under oath, with full opportunity on the part of the opposing party for cross-examination” (People vs. Mary Lou Omictin, G.R. No. 188130, July 26, 2010). Their interpretation of the full text of the  pardon is a hearsay because former President Gloria Macapagal – Arroyo did not corroborate them.    “Well-settled is the rule that while lack of objection to a hearsay testimony or evidence results in the admittance thereof as evidence, said evidence cannot be given any credence and probative values unless it is shown that it falls within the exceptions to the hearsay rule” (People vs. Cabintoy, 247 SCRA 442; JRS Business Corporation vs. NLRC, 246 SCRA 445; Eugenio vs. Court of Appeals, 239 SCRA 207; Baguio vs. Court of Appeals, 226 SCRA 366).
 Was absolute pardon not conditional pardon given to former President Joseph Estrada after his conviction for plunder? The answer is in the affirmative.  The lone proof – Full Text of the Pardon –  established the truthful fact of  the absolute pardon given to respondent. A Judge has performed his first duty in the Constitution in decision – making by establishing the correct facts. The last duty of a Judge is to apply the laws and jurisprudences to the fact of absolute pardon. What are the effects of absolute pardon to the respondent in case he runs for a public office? The answer is none because the absolute pardon restored his civil and political rights. The legal bases are:
 1.  B.P. Blg. 881 (Omnibus Election Code), Sec. 12 that states:  Disqualifications. – Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the same period he again becomes disqualified.
2. Monsanto v. Factoran , Jr., G.R. No. 78239, February 9, 1989: The benign mercy of pardon is of British origin, conceived to temper the gravity of the King’s wrath. But Philippine jurisprudence on the subject has been largely influenced by American case law. Pardon is defined as “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. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance” (United States v. Wilson, 7 Pet. 160, 160-1, cited in Bernas, The 1973 Philippine Constitution, Notes and Cases, Part I, 1974 Ed., p. 355). At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty in  Article VII, Section 11, 1973 Constitution. The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner’s unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. Having disposed of that preliminary point, we proceed to discuss the effects of a full and absolute pardon in relation to the decisive question of whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. In Pelobello v. Palatino, 72 Phil. 441, we find a reiteration of the stand consistently adopted by the courts on the various consequences of pardon: “… we adopt the broad view expressed in Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an absolute pardon not only blots out the crime committed but removes all disabilities resulting from the conviction…(We are of the opinion that the better view in the light of the constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone the rigidity of the law to the extent of relieving completely the party … concerned from the accessory and resultant disabilities of criminal conviction. The Pelobello v. Palatino and Cristobal v. Labrador cases, and several others such as In re Lontok, 43 Phil. 293; Pendon v. Diasnes, 91 Phil. 848 and Mijares v. Custorio, 73 Phil. 507  show the unmistakable application of the doctrinal case of Ex Parte Garland, 4 Wall. 333, 18 L. Ed. 366  whose sweeping generalizations to this day continue to hold sway in our jurisprudence despite the fact that much of its relevance has been downplayed by later American decisions. Consider the following broad statements:  A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity stated in Ex Parte Garland  67 C. J. S. 576-577.  Such generalities have not been universally accepted, recognized or approved.  The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness (Ex Parte Garland   67 C. J. S. 576-577; Page vs, Watson, 192 So. 205, 126 A.L.R. 249, 253). The better considered cases regard full pardon (at least one not based on the offender’s innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt (Comm. of Met. Dist. Com. v. Director of Civil Service, 203 N.E. 2d 95). But it relieves him from nothing more. “To say, however, that the offender is a “new man”, and “as innocent as if he had never committed the offense;” is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction” (State v. Cullen, 127 P. 2d 257). A pardon looks to the future. It is not retrospective (Morris v. Hartsfield, 197 S.E. 251).  It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required” (Illinois C.R. Co. v. Bosworth, 133 U.S. 92, 33 L Ed. 550, 554-555, citing Knote v. United States, 95 U.S. 149).
3. RA No. 7160 (Local Government Code ) Section 40 provides: Disqualifications. – The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;(b) Those removed from office as a result of an administrative case;(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;(d) Those with dual citizenship;(e) Fugitives from justice in criminal or non-political cases here or abroad;(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of the same right after the effectivity of this Code; and(g) The insane or feeble-minded. The foregoing disqualifications do not apply when an absolute pardon was given to a disqualified offender in B.P. Blg. 881 (Omnibus Election Code), Sec. 12 that came from a constitutional mandate which Section 40 of RA No. 7160 must obey since an absolute pardon is a well – recognized power of the President as provided in Article VII, Section 19, 1987 Constitution, to quote: 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. What can limit the absolute pardoning power of a President are impeachment cases and Constitutional provisions.  Therefore, the 1989 Monsanto v. Factoran Jr. principle on pardon favored the respondent. The Supreme Court should have junked the petition outright for lack of merit.
 The legal issue here is not the conviction of former President Joseph Estrada as a plunderer but the pardon given to him that restored his civil and political rights. Common sense dictates, if a convict was pardoned that restored his political rights, he has a  right to vote and be voted in the Rule of Law. There were over three hundred thousand (300,000) Manila voters who elected an ex -convict of plunder, should fifteen (15) Supreme Court voters unseat him? Yes, if he was not pardoned. Former President Gloria Macapagal – Arroyo most likely pardoned former President Joseph Estrada: 1.To split the votes of opposition in 2010 elections; and 2.To pardon her in case it happens to her.  Intellectuals can unseat elected “crooks” to promote clean government but absolute pardon bars them in the Rule of Law. To do so is the “Rule of the Intellectual Mob” not the Rule of Law. The proper remedy against a pardoned convicted plunderer is not a petition to disqualify him but to beat him in a clean and honest election. The heckling public may say that the non-dismissal of the petition to disqualify as soon as possible, the very delayed resolution of a simple case, and the publication of the soft voting in media (for the respondent to take hanky panky action), gave the negative public perception of payoff. This bad public opinion should be supported by evidence because graft and corruption are impeachable offenses of siting Supreme Court Justices in Article XI, Section 2 of the 1987 Constitution.
 Absolute pardon has restored the political rights of a convicted plunderer but not his good name and clean reputation until his death. The petitioners, Atty. Alicia Risos-Vidal, former IBP Bar Discipline Chair, and former Mayor Alfredo Lim, did a good work if only to expose an odd phenomenon in the Philippine politics that voters elect convicted plunderer as a local leader.
 Dissenting Associate Justice of the Supreme Court’s ponencia is ethically good and morally sound written by a legal luminary but it offered a legal philosophy that ignored completely the lone proof that presented an obvious truth, this naked truth is bitter to others, once a heinous criminal received an absolute pardon, his civil and political rights are restored as if he did not commit a heinous crime. It is a legal grace bestowed by a head of the State to a criminal that made him a clean and free citizen despite of the grave offense of plunder committed against the State and its people.   The Dissenting ponencia as a legal opinion is  just in the sense that it is ethical and moral but at the same time, it is  wrong in the sense that it disregarded the evidence and misapplied the laws. What wins a case is the evidence not an ethical and moral opinion. There are laws that have no ethics and morals due to the constitutional principle of the “Separation of Church and State” in Article II, Section 6, 1987 Constitution. An absolute pardon of a convicted plunderer is an immoral and unethical law, expressly written in the supreme law of the land that was ratified by the Filipino people. Unless there is a law that prohibits a pardoned convicted plunderer from running in a public office, a Judge, who personally hates the convicted plunderers and their minions, is duty – bound to apply properly the laws and jurisprudences on absolute pardon granted by a President to a former President who was convicted with a charge of plunder, a heinous crime involving the public funds. In People v. Judge Veneracion, G.R. Nos. 119987-88, October 12, 1995, Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are required by law to exercise the duties of their office, then law becomes meaningless. A government of laws, not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this system, judges are guided by the Rule of Law, and ought “to protect and enforce it without fear or favor,” resist encroachments by governments, political parties, or even the interference of their own personal beliefs.
 In the Rule of Law, justice is for all, this includes justice to the pardoned convicted plunderer who was re – elected into public office by the people. There must be a law that will absolutely and totally prohibit the pardoned criminals, convicted criminals and criminals with pending cases to run in a public office. It is about time to amend the 1987 Philippine Constitution.

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CONTENTS

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