MANILA, Philippines — The Good Conduct and Time Allowance law should not be applied on the case of US Marine L/Cpl. Joseph Scott Pemberton, a lawyer of the family of slain transgender woman Jennifer Laude said Thursday.
The Olongapo Regional Trial Court Branch 74 on September 1 ordered the release of Pemberton, who strangled and killed Laude in 2014, nearly six years of imprisonment after it deducted time allowances the US soldier supposedly earned while in prison.
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But lawyer Romel Bagares, counsel of the Laude family, argued that Pemberton should not be allowed to avail of the GCTA law.
“We don’t think that he could actually avail of the benefits of this rule. Our main argument really is the fact that his situation is covered by the [Visiting Forces Agreement],” Bagares said in an interview with ABS-CBN News Channel.
Bagares noted that in the 2015 case of Laude vs. Jabalde, the Supreme Court ruled that “there has to be a specific agreement between the Philippines and the United States under the VFA on his [Pemberton’s] disposition after his conviction.
“There is no such specific agreement that would apply the GCTA,” the lawyer stressed.
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According to the court’s computation, Pemberton has served a total of 2,142 days, while his GCTA amounted to 1,548 days, amounting to the total of 3,690 days—more than the imposed 10 years of imprisonment.
The court document showed that Pemberton has achieved perfect scores under GCTA for December 2015 and every month of 2016, 2017, 2018, 2019 and until August 2020. This earned him a deduction in his sentence of 1,288 days. The court also accounted for 260 days of GCTA from his preventive imprisonment.
Laude’s case reached the high court in 2015 as her family urged the court to compel Pemberton’s transfer from the Armed Forces of the Philippines headquarters to the Olongapo City Jail.
The 2015 case was ruled on following 2009 case of Nicolas vs Romulo where petitioners questioned the detention of American soldier Daniel Smith for the rape of “Nicole,” a Filipina, in 2005. He was later acquitted by the Court of Appeals.
Equal protection of the law
Bagares explained that in Laude case, the “SC recognized that under the VFA, anyone or any American personnel convicted under the VFA would be in a sui generis situation because he or she would be treated under a separate modality and that is a treaty,” referring to the VFA.
“So we are arguing that the GCTA should not have been applied to him in the absence of a definite agreement that would cover him,” he added.
Under the VFA, Pemberton was detained during trial, and served his sentence at the AFP’s custodial center instead of in a city jail and the New Bilibid Prison. A 2015 STAR report said that he was guarded by Bureau of Corrections personnel.
Bagares stressed that the SC ruled in 2015 that they cannot raise equal protection of the law since “to begin with, there is really no equal treatment given to someone who is convicted or who is being prosecuted under the VFA because it is treated in a separate manner.”
“The court said there has to be specific agreement... the agreement here only was signed with respect to where he [Pemberton] would not be detained and where he will be serving sentence,” the lawyer added.
The SC held in the 2015 Laude vs Jabalde case: “The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused.”
Laude family’s motion for reconsideration
Laude’s family has sought the reversal of the Olongapo court order as they argued that here is no proof of good behavior from Pemberton, neither is there a showing that he participated in rehabilitation programs.
“All that Pemberton submitted is his self-serving computation. Even the [BuCor’s] submission was just a mere computation without any material basis. Hence, should not be given credence by the Honorable Court,” their motion for reconsideration filed Wednesday read.
In a message to reporters, lawyer Virgie Suarez said pending the ruling on their appeal, Pemberton must remain in detention. “It should be the case. All orders of the court become final and executory only after ten days,” she said.