The Philippine government through its Department of Justice (DOJ) will submit next week its own motion for reconsideration on the early release of US Marine Joseph Scott Pemberton, raising new questions about the contentious Good Conduct Time Allowance (GCTA) law.

“The DOJ will file its own motion for reconsideration next week,” Justice Secretary Menardo Guevarra told reporters on Friday, September 4, but did not elaborate what their appeal will contain.

Will the DOJ contend the computation only and stick by the Bureau of Correction’s (BuCor) original count, or will it argue an American soldier’s qualification to avail of GCTA?

“I cannot answer your questions publicly. These issues are sub judice, and are the very subject of the ongoing court proceedings,” said Guevarra.

With the DOJ joining the fore, questions are raised about when criminal liability is extinguished and whether the GCTA of a convict can be appealed in the first place.

The DOJ stopped the BuCor from immediately implementing the court’s release order, saying it would be premature to release Pemberton before the court decides pending motions. 

What happened

Pemberton was given full GCTA credits by an Olongapo court and ordered released from detention 4 years ahead of his full 10-year sentence for homicide over the killing of Filipino trans woman Jennifer Laude in 2014. Pemberton was supposed to have sex with Laude at the red light district north of Manila frequented by visiting American soldiers, until he fumed upon discovering she had male genitals.

Marilou Laude, Jennifer’s sister, had already filed a motion for reconsideration. Marilou’s lawyer Virgie Suarez earlier said that BuCor’s computation would have Pemberton stay in jail for 10 more months. Suarez also appealed to the court for proof of Pemberton’s good conduct records when he was in isolation at the military headquarters in Camp Aguinaldo.

In an opposition filed Friday, Pemberton’s lawyer Rowena Garcia Flores said Marilou had lost the legal right to appeal the court’s decision for early release.

Flores argued that because Pemberton had already paid the P4.6-million civil damages in full, the Laudes can no longer participate in the case.

“Jurisprudence has already settled that the interest of the private complainant is limited only to the civil liability arising from the crime,” said the opposition.

Article 94 of the Revised Penal Code says criminal liability is extinguished upon pardon, commutation of sentence, and GCTA earned – the last being applicable to Pemberton.

Guevarra and his spokesperson Undersecretary Markk Perete have not yet responded to Rappler regarding this aspect.

Nothing in the GCTA law or Republic Act No. 10592 discusses who can appeal a GCTA grant. It only said that the jail director shall grant the GCTA, and once granted, it can never be revoked. 

Who can appeal?

Convicted rapist and murderer Antonio Sanchez was supposed to be released in 2019 after only serving 25 out of his maximum 40-year sentence because of GCTA, but the BuCor itself aborted the release because of public outrage.

The BuCor backtracked and said Sanchez committed offenses in prison, causing him to lose GCTA points. Sanchez is still in jail. (READ: Beyond Sanchez: How to improve the Good Conduct Time Allowance Law?)

But had BuCor stuck by its earlier decision, who could appeal the early release if not the family of Sanchez’s victims?

“If BuCor is wrong and DOJ does not contradict BuCor, it’s the Solicitor General as Tribune of the people,” said former supreme court spokesperson Ted Te.

Guevarra said he hopes that the Office of the Solicitor General (OSG) can join the DOJ in its motion for reconsideration.

“We hope that the OSG will join the DOJ in our motion. Be that as it may, the DOJ prosecutors will now assert their authority to represent the people in the trial court proceedings,” said Guevarra.

The DOJ’s refusal to immediately implement the court order to release Pemberton had raised questions on due process.

Guevarra said the Philippine government “is also entitled to due process, as much as accused Pemberton.” – Rappler.com