Pardon and /or clemency

(Former Solicitor General, Philippine Envoy to Canada and Jurist, UN International Commission)

Definition of pardon and clemency

Pardon, is an executive action that mitigates or sets aside punishment for a crime. An Act of grace from government governing power which mitigates the punishment the law demands for the offense and restores the rights and privileges forfeited on account of the offense. (Verneco, Inc. v. Fidelity & Cas. Co. of New York 253 La. 721, 219 So. 2d 508, 511; cited in page 113 of Black’s Law Dictionary Sixth Edition). On the other hand, Clemency, means kindness, mercy, forgiveness, leniency; usually relating to criminal acts (page 252 Black’s Law Dictionary, id).

Pardon and clemency in the US

In the US, the pardoning power for federal crimes is granted to the President by the US Constitution. Article II, Section 2 states that the President shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The grant of this power to the President was controversial from the very beginning. Even in his final day in office, President Washington granted the first high profile Federal pardon to leaders of the Whisky rebellion. Critics also argued that pardons have been used for the sake of political expediency than to correct judicial error. The pardon granted to President Nixon by President Ford on September 8, 1974 for official misconduct which gave rise to the Watergate scandal shocked the nation, resulting in Ford’s defeat to President Carter in the 1976 elections. It is noted that when Ford granted this pardon, Nixon has not been convicted or even formally charged with a crime. Clemency may also be granted without the filing of a formal request and even if the intended beneficiary has no  desire to be pardoned (from Wikipedia, the free encyclopedia).

The pardoning power of the chief executive in the Philippines

Under the Jones Law which preceded the 1935 Philippine Constitution, the pardoning power was vested in the Executive. Down the line in our organic laws that power has remained and been recognized. Under Article VII of the 1935 Constitution, the President shall have the power to grant reprieves, commutations and pardons. That same power is vested in the prime minister under the 1973 Constitution. Of course, in Article VII Section 19 of the 1987 Constitution that power has remained in the following language, “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.”

It is clear that the grant by the President of pardon must be done after conviction by final judgment. This grant varies from that given to the US President in that the latter can grant pardon even before conviction as in the case of Nixon. The other issue regarding the exception in the cases of impeachment would refer to impeachment resulting in conviction. Thus, the mere filing of Articles of Impeachment by the House of Representatives with the proceeding not reaching finality either by conviction or acquittal is  not comprehended within the limitation to the issuance of pardon. Although, the limitation in the case of impeachment was consistently adopted from the language of previous organic laws, the framers of the 1987 Constitution could have improved on this by adding the word conviction on impeachment. Impeachment as a limitation on the grant of pardon could be interpreted to mean only the filing of the Articles of Impeachment.

The grant of pardon,  a political expediency

It is said that the grant of pardon is a tacit admission that human institutions are imperfect and that there are infirmities in the administration of justice. The power is exercised as a vehicle for correcting these infirmities and for mitigating whatever harshness might be generated by the strict application of the law.

But, whatever are the reasons that motivate the Chief Executive, such power belongs to him exclusively. The Jones Law vested the “exclusive power” to the Chief Executive to grant pardons. Such that the Chief Executive for any reason he deemed just and at anytime, before trial, during trial, after trial and before conviction, after conviction and before serving sentence or during the service of the sentence. This is the extent of the power of pardon under the said Jones Law. There are of course now limitations to this exercise. During the debate in the Constitutional Convention drafting the 1935 Constitution, the delegates were undoubtedly heavily influenced by the Jones Law and the US Federal Constitution. Thus, among the amendments proposed was the insertion of the word “Sole” to make the President of the Philippines the only executive officer to exercise the pardoning power. But this was defeated since the insertion of the word was unnecessary as the President was the only officer to exercise the pardoning power. There was likewise no objection against that part of the draft excepting from the offenses that could be pardoned cases of impeachment. It was felt that said exception would serve as a check upon the power of the President so that he could not protect from punishment for political offenses high impeachable officials.

The executive clemency or pardon granted to former President Estrada may not be questioned

It cannot be questioned simply because it is an act of the President under the authority of the Constitution. As a former Solicitor General, I have official knowledge of appealed cases and the Solicitor General at that stage acts as Counsel for the People of the Philippines. But the grant of pardon effectively puts an end to the judicial process or that power cannot also be exercised should there still be a proceeding before the court. It is to be noted that in appealed cases after conviction in the lower court, a major party to the proceeding is the Solicitor General who will either recommend affirmance or reversal of the conviction.

In conclusion, it is interesting to take note of the doctrinal case of Ex Parte Garland (4 Wall. 33,18 L. Ed. 366; Cited in Philippine case of Monsanto v. Factoran Jr., 170 SCRA 190 1989). Accordingly, the broad statement in that case is that 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 and in the eye of the law the offender is as innocent as if he had never committed the offense. But in the ponente of CJ Fernan, he disagreed with the generalities in the broad language of the Garland case. He posited that the very essence of 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 (citing 67 C.J.S. 576-577; Page vs. Watson, 192 So. 205, 126 A.L.R. 249, 253).