Malacañang on Thursday lashed out at the decision of an Olongapo City court ordering the release of United States Marine Lance Cpl. Joseph Scott Pemberton, saying it was a “judicial overreach.”

Indignation.  Members of youth groups hold a rally in front of the Department of Justice on Sept. 3, 2020 to show their opposition to the court ruling ordering the release of Joseph Scott Pemberton. PHOTO BY RENE H. DILAN

Pemberton, who was convicted in 2015 for killing Filipino transgender woman Jennifer Laude, was ordered released after serving less than six years of his 10-year sentence.

The Olongapo City Regional Trial Court Branch 74 last September 1 approved the American’s application for a Good Conduct Time Allowance (GCTA), enabling him to be freed before he had served out his sentence.

In a briefing on Thursday, Palace spokesman Harry Roque Jr. said Pemberton must remain in detention since the court ruling on his release was “not yet final and executory.”

Roque said the government intends to file a motion for reconsideration challenging the decision, insisting it was an “instance of judicial overreach.”

“To those holding Pemberton, let or give the executive branch a chance to move for reconsideration because the decision on the allowance for good conduct is an executive function. The decision of the judge based on a reckoning of good conduct credits purportedly earned by the convicted prisoner is an instance of judicial overreach,” Roque said.

Pemberton is being held at a special facility in the Armed Forces of the Philippines (AFP) Custodial and Detention Center in Camp Aguinaldo, Quezon City.

Roque said Justice Secretary Menardo Guevarra mentioned to him the government’s plans to appeal the court decision.

He said the decision was also against the Bureau of Corrections’ (BuCor) recommendation on providing time allowance for good conduct.

“Under the law that gives allowance for good conduct, there must be a recommendation from the Bureau of Corrections,” Roque said.

Pemberton served only five years and eight months of his 10-year term.

Roque said he has not discussed with President Rodrigo Duterte the Pemberton decision, but he linked it with Duterte’s order to scrap the Visiting Forces Agreement (VFA) between the Philippines and the US.

The VFA lays down the rules on the conduct of American troops while in Philippine territory.

“If you recall, he has ordered the abrogation of the VFA because it is not pursuant to our national interest,” said Roque.

Not just yet

Pemberton may have to stay in detention a little longer, according to Justice Undersecretary Mark Perete.

Perete said on Thursday the BuCor would hold Pemberton’s release until a motion for reconsideration, or MR, has been resolved.

“The MR would have to be resolved first. BuCor cannot preempt court action on the MR by prematurely releasing Pemberton,” Perete, who is also the DoJ spokesman, said in a Viber message to reporters.

The Laude family has filed such a motion before the Olongapo court.

Maj. Gen. Edgard Arevalo, AFP spokesman, said it could not release Pemberton just yet, citing an agreement between the military and BuCor.

“The agreement specifies that BuCor exercises operational control and supervision relative to the inmate’s service of sentence,” Arevalo said on Thursday.

In her MR, Marilou Laude-Mahait, the transgender’s sister, said Pemberton failed to show proof of good conduct during his detention.

“There is no proof of Pemberton’s behavior, conduct and participation of any activities certified by the Time Allowance Supervisor,” Laude-Mahait said.

Laude was found dead at the Celzone Lodge in Olongapo on Oct. 11, 2014, where she and Pemberton had stayed.

Based on court records, the two had a violent argument after Pemberton found out that Laude was a transgender.

Pemberton left the room, and Laude’s body was later discovered.

Laude-Mahait said all that Pemberton submitted was a “self-serving computation” without any material basis and should not be given credence by the court.

Another look

The Pemberton case has once again put the controversial GCTA in the spotlight, and some lawmakers believe it is time to give it a second look.

Senate President Vicente Sotto 3rd raised the possibility of another Senate hearing on the GCTA, which it last scrutinized when it was exposed that high-profile convicts, including drug lords, were among the dozens of inmates who were about to be released on the basis of the good conduct law.

“It is a good thing that the blue ribbon committee of the Senate has not ended the hearing on the GCTA, if you will recall,” Sotto said in a television interview Thursday.

He noted that Sen. Richard Gordon, the blue ribbon chairman, merely suspended the hearing.

Sen. Ana Theresia “Risa” Hontiveros believes that Pemberton’s team “saw the pandemic as an opportunity to plan his release,” as they filed a motion for computation in June under the GCTA Law then filed a motion for his release in August.

“The swiftness by which our institutions have acted on a white, male American’s case is a privilege that is never accorded to many Filipinos. What message does this send to our citizens who have routinely suffered from our own justice system?” Hontiveros said.

She said Pemberton’s release “would be a loss in the LGBTQI+ (lesbian, gay, bisexual, transgender, queer, intersex plus) community’s fight for equality and justice.”

“Many LGBTQI+ groups believe that six years is not enough, especially considering the gruesome killing he committed against Jennifer [Laude],” she said.

Sen. Panfilo Lacson said he was not happy with Pemberton’s impending release “because the victim was Filipino, and a foreigner was convicted [for killing him].”

But Lacson held judgment on the issue, saying he does not know the intricacies of the decision to release Pemberton. “Aside from what they say that there was computation done under the GCTA, of course it has underpinnings which were not publicly or openly discussed,” he said.

Members of the Makabayan bloc at the House of Representatives condemned the decision to free Pemberton.

Gabriela party-list Rep. Arlene Brosas sees it as “a mockery of Philippine laws.”

“It cannot be denied that this injustice is just another picture of the people’s vulnerability, especially of women, who became victims of different forms of violence in the hands of foreign troops under the Visiting Forces Agreement and Enhanced Defense Cooperation Agreement,” Brosas said.

“Because of these one-sided agreements, the government lost its power to bring justice to Jennifer Laude and her family. We challenge President Duterte: if you are really serious in terminating the VFA, do it now. VFA has clearly failed to enhance the country’s capabilities to uphold national security and sovereignty. Its termination is long overdue,” she said.

Bayan Muna Rep. Ferdinand Gaite called on the court to review its decision to release Pemberton.

Gaite denounced the “special treatment” that was accorded Pemberton, saying, “He never spent one single day in a Philippine prison.”

“We further reiterate our longstanding call for the immediate abrogation of the Visiting Forces Agreement. This agreement has not only resulted in the murder of Jennifer Laude but also made the special treatment of an American criminal possible,” Gaite said.