Justice and mercy

Executive clemency is an act of grace vested in the President by the Constitution usually proceeding from the executive power to enforce and execute the laws. It may take the form of reprieves, commutations, pardons, remission of fines and forfeiture and amnesty.

The main object of executive clemency is to prevent injustice when it is ascertained that an error has been committed in the application of criminal laws, or to mitigate the harshness of their strict application, recognizing that in a civilized but imperfect society, the administration of justice is also error prone. Furthermore, as the word “clemency” implies, it is a humanitarian act. Thus in one case, the Supreme Court said that “without such power of clemency, a country would be most…deficient…in that attribute of God whose judgments are always tempered with mercy”.

The exercise of executive clemency is an exclusive prerogative of the President. With respect to pardon the well entrenched rule of jurisprudence is that courts may not inquire into its wisdom or reasonableness and once granted it is final and unappealable. Seemingly, the President’s discretion in this regard is almost absolute, except perhaps when there is grave abuse committed amounting to excess or lack of jurisdiction. So far however no case of grave abuse of discretion in the exercise of executive clemency specifically pardon, have reached the courts. The controversial and highly questionable Erap pardon would have been a test case but no one brought it to court obviously in deference to existing jurisprudence.

Now another controversy has arisen surrounding the exercise of this executive privilege on double murder and frustrated murder convict, Claudio Teehankee Jr. He was sentenced to one count of reclusion perpetua and two counts of reclusion temporal. Reclusion perpetua entails imprisonment of 20 years and one day to 40 years while reclusion temporal is from 12 years and one day to 20 years.

The president’s exercise of executive clemency is always controversial obviously because of lack of transparency. Malacañang and the Department of Justice keep saying that there is nothing irregular in the presidential clemency extended to Teehankee Jr. If that were so, they should not have surreptitiously kept everything under wraps until it is a fait accompli and Teehankee Jr. is already released or about to be released in the dead of the night. With more reason in this case because the offender is affluent and influential and the crimes committed are heinous and sensational. The prevailing public perception now is that the grant of clemency is done in a clandestine manner purposely to thwart any possible objection considering that when clemency is exercised and granted, almost nothing more could be done to question it.

The controversy is heightened here by the confusing statements emanating from Malacañang and the DOJ. They could not even agree on the form of clemency given to Teehankee Jr. Malacañang repeatedly says that the executive clemency granted was pardon while the DOJ talks about commutation. This usually happens when there is lack of transparency. The President’s men are fumbling with conflicting explanations.

Actually, there is a whale of a difference between pardon and commutation. Commutation is the reduction of the sentence imposed, to a lesser punishment. It means merely a change of punishment so that it removes no stain, restores no civil privilege and may be effected without consent or against the will of the prisoner. Justice can be said to have been satisfied here because the offender has served his sentence albeit reduced. Pardon on the other hand avoids or terminates punishment and must be accepted by offender or it is nugatory.

Following the pronouncement of the DOJ, the executive clemency extended to Teehankee Jr. was clearly more of a commutation of his sentence. He was not pardoned. He was freed on October 2, 2008 because he was considered to “have already served his full term” by virtue of the order of the President dated September 9, 2008 commuting his sentence. According to DOJ Secretary Gonzalez, Teehankee Jr. had already served more than 21 years because his detention in the Makati jail during the trial of his case prior to his transfer to the National Penitentiary was included in the computation of the time he has served.

But the controversy lingers because of some unanswered questions. Considering that there are three sentences meted against Teehankee Jr. for the three offenses he has committed, which of these sentences was commuted? Under the law, these penalties are to be served successively in the order of their severity although their maximum period cannot exceed 40 years (Article 70 Revised Penal Code). Hence, it can be inferred that only the severest penalty which is reclusion perpetua that has a maximum period of 30 years has been commuted to 21 years, unless it is expressly stated that all three sentences have been commuted. Unfortunately Gonzalez is vague on this issue.

The ambiguity is made worse by the series of pronouncements from Malacañang people that Teehankee Jr. was pardoned. Even Malacañang ally, Senator Joker Arroyo talks of the “similarities in the presidential pardons given to former President Joseph Estrada and Teehankee”. If there is nothing irregular about the decision of the President here, the President’s people should at least agree on the kind of clemency given to Teehankee, Jr. They even revived old wounds by claiming that the cash given to the Hultmans by way of settlement also includes an agreement that they will not pose any objection to the grant of executive clemency.

More than an act of Justice based on law, executive clemency is a very noble act of mercy based on love that extends even to those who have committed offenses and have not made reparations yet. Hence, its wisdom and reasonableness are usually unquestionable. It is unfortunate that in this case where the offender and his family seemed to have already shown remorse and asked for apology, it still aroused a lot of controversy simply because of the clandestine and confusing manner it was carried out by the President’s men. Will “heads be rolling”? I doubt it.

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