The controversial plan of Pres. Gloria Arroyo to pardon former Pres. Joseph Estrada, who has been convicted of the crime of plunder (penalty of reclusion perpetua) should be well studied in relation to, inter alia, the rules implementing Act No. 4103, quoted in full below. (See: http://www.doj.gov.ph).
Pursuant to the provisions of Section 4 of Act No. 4103, "The Indeterminate Sentence Law", as amended, the following Rules and Regulations are hereby promulgated to govern the actions and proceedings of the Board of Pardons and Parole:
I. GENERAL PROVISIONS
SEC. 1. Policy Objectives - Under the provisions of Act No. 4103, as amended, otherwise known as the "Indeterminate Sentence Law", which was approved on December 5, 1933, it is the function of the Board of Pardons and Parole to uplift and redeem valuable human material to economic usefulness and to prevent unnecessary and excessive deprivation of personal liberty by way of parole or through executive clemency. Towards this end, the Board undertakes the following:
1. Looks into the physical, mental and moral records of prisoners who are eligible for parole or any form of executive clemency and determines the proper time of release of such prisoners on parole;
2. Assists in the full rehabilitation of individuals on parole or those under conditional pardon with parole conditions, by way of parole supervision; and,
3. Recommends to the President of the Philippines the grant of any form of executive clemency to prisoners other than those entitled to parole.
SEC. 2. Definition of Terms - As used in these Rules, unless the context indicates otherwise-
a. "Board" refers to the Board of Pardons and Parole;
b. "Executive Director" refers to the Executive Director/Secretary of the Board;
c. "Administration" refers to the Parole and Probation Administration;
d. "Administrator" refers to the Administrator of the Parole and Probation Administration;
e. "Regional Director"refers to the Head of the Parole and Probation Administration in the region;
f. "Probation and Parole Officer" refers to the Probation and Parole Officer undertaking the supervision of the client;
g. "Director" refers to the Director of the Bureau of Corrections;
h. "Penal Superintendent" refers to the Officer-In-Charge of the New Bilibid Prison, the Correctional Institution for Women and the prison and penal farms of the Bureau of Corrections;
i. "Warden"refers to the Officer-In-Charge of the Provincial, City, Municipal or District Jail;
j. "Carpeta" refers to the institutional record of an inmate which consists of his mittimus or commitment order issued by the Court after conviction, the prosecutor's information and the decisions of the trial court and the appellate court, if any; certificate of non-appeal, certificate of detention and other pertinent documents of the case;
k. "Prison Record" refers to information concerning an inmate's personal circumstances, the offense he committed, the sentence imposed, the criminal case number in the trial and appellate courts, the date he commenced serving his sentence, the date he was received for confinement, the place of confinement, the date of expiration of the sentence, the number of previous convictions, if any, and his behavior or conduct while in prison;
l. "Parole" refers to the conditional release of an offender from a correctional institution after he has served the minimum of his prison sentence;
m. "Executive Clemency" refers to Reprieve, Absolute Pardon, Conditional Pardon with or without Parole Conditions and Commutation of Sentence as may be granted by the President of the Philippines;
n. "Reprieve" refers to the deferment of the implementation of the sentence for an interval of time; it does not annul the sentence but merely postpones or suspends its execution;
o. "Commutation of Sentence" refers to the reduction of the duration of a prison sentence of a prisoner;
p. "Conditional Pardon" refers to the exemption of an individual, within certain limits or conditions, from the punishment which the law inflicts for the offense he had committed resulting in the partial extinction of his criminal liability;
q. "Absolute Pardon" refers to the total extinction of the criminal liability of the individual to whom it is granted without any condition. It restores to the individual his civil and political rights and remits the penalty imposed for the particular offense of which he was convicted;
r. "Petitioner" refers to the prisoner who applies for the grant of executive clemency or parole;
s. "Parolee" refers to a prisoner who is released on parole;
t. "Pardonee" refers to a prisoner who is released on conditional pardon;
u. "Client" refers to a parolee/pardonee who is placed under supervision of a Probation and Parole Officer;
v. "Release Document" refers to the Conditional Pardon/Absolute Pardon issued by the President of the Philippines to a prisoner or to the "Discharge on Parole" issued by the Board;
w. "Parole Supervision" refers to the supervision/surveillance by a Probation and Parole Officer of a parolee/pardonee;
x. "Summary Report" refers to the final report submitted by the Probation and Parole Officer on his supervision of a parolee/pardonee as basis for the latter's final release and discharge;
y. "Progress Report" refers to the report submitted by the Probation and Parole Officer on the conduct of the parolee/pardonee while under supervision;
z. "Infraction Report" refers to the report submitted by the Probation and Parole Officer on violations committed by a parolee/pardonee of the conditions of his release on parole or conditional pardon while under supervision.
SEC. 3. National Prisoner Confined in a Local Jail - The Board may not consider the release on pardon/parole of a national prisoner who is serving sentence in a municipal, city, district or provincial jail unless the confinement in said jail is in good faith or due to circumstances beyond the prisoner's control.
A national prisoner, for purposes of these Rules, is one who is sentenced to a maximum term of imprisonment of more than three (3) years or to a fine of more than five thousand pesos; or regardless of the length of sentence imposed by the Court, to one sentenced for violation of the customs law or other laws within the jurisdiction of the Bureau of Customs or enforceable by it, or to one sentenced to serve two (2) or more prison sentences in the aggregate exceeding the period of three (3) years.
SEC. 4. Scope of Authority - The Board may consider the case of a prisoner for executive clemency or parole only after his case has become final and executory. It will not take action on the petition of a prisoner who has a pending criminal case in court or when his case is on appeal.
In case the prisoner has one or more co-accused who had been convicted, the Director/Warden concerned shall forward their prison records and carpetas at the same time.
II. PETITIONS FOR EXECUTIVE CLEMENCY/PAROLE
SEC. 5. Filing of Petition - A formal petition for executive clemency addressed as follows shall be submitted to the Board before the question of said clemency will be considered:
"The President of the Philippines
Thru: The Chairman
Board of Pardons and Parole
DOJ Agencies Bldg., NIA Road cor. East Avenue
Diliman, Quezon City"
Petitions for parole shall be addressed to the Chairman or to the Executive Director of the Board.
However, the Board may, motu proprio , consider cases for parole, commutation of sentence or conditional pardon of deserving prisoners whenever the interest of justice will be served thereby.
SEC. 6. Contents of Petition - A petition for parole/executive clemency shall state the name of the prisoner, his age, previous criminal record, if any, whether a Filipino citizen or an alien and, if a naturalized Filipino, his former nationality and date of naturalization, his previous occupation, place of residence, present crime for which he was convicted, the trial/appellate court, his penalty of imprisonment, fine, indemnity and the commencing date thereof, the jail or prison to which he was committed and/or where he is presently confined, the date he was received for confinement, the grounds upon which executive clemency is being asked and certification from the trial court that his case is not on appeal.
In addition to the above-mentioned data, a petition for absolute pardon shall be under oath and shall include the date the petitioner was released from prison after service of sentence or released on parole/pardon or terminated from probation.
SEC. 7. Supporting Documents of Petition for Absolute Pardon - The petition for absolute pardon shall be accompanied by -
a. the affidavits of at least two (2) responsible members of the community where the petitioner resides. The affidavits shall, among others, state that the petitioner has conducted himself in a moral and law-abiding manner since his release from prison and shall indicate the petitioner's occupation and his social activities including religious involvement;
b. the clearances from the National Bureau of Investigation, the Philippine National Police, the Prosecutor's Office, the Municipal Circuit Trial Court, the Municipal Trial Court, the Municipal Trial Court in Cities, the Metropolitan Trial Court and the Regional Trial Court where petitioner resides;
c. proof of payment of indemnity and/or fine, or in lieu thereof, certification from the City/Municipal Treasurer or Probation and Parole Officer on his financial condition; and,
d. proof of service of sentence or certificate of Final Release and Discharge or court's Termination Order of probation.
In case of an alien, the petition shall be referred to the Department of Foreign Affairs for comment and recommendation.
SEC. 10. Review of Cases for Executive Clemency - Petitions for executive clemency may be reviewed if the prisoners meet the following minimum requirements :
SEC. 11. Prisoners not Eligible for Executive Clemency - Prisoners who escaped or evaded service of sentence are not eligible for executive clemency for a period of one (1) year from the date of their last recommitment to prison or conviction for evasion of service of sentence.
SEC. 16. Deferment of Parole When Safety of Prisoner/Victim/Relatives of Victim/Witness Compromised - If, based on the Pre-Parole Investigation Report conducted on the prisoner, there is a clear and convincing evidence that his release on parole will endanger his own life and those of his relatives or the life, safety and well-being of the victim, his relatives, his witnesses and the community, the release of the prisoner shall be deferred until the danger ceases.
V. PROCEEDINGS OF THE BOARD
SEC. 17. Interview of Prisoners - Any Board member or government official authorized by the Board may interview prisoners confined in prison or jail to determine whether or not they may be released on parole or recommended for executive clemency.
The Board or its authorized representatives shall interview an inmate who was sentenced to Reclusion Perpetua or Life imprisonment, or whose sentence had been commuted from Death to Reclusion Perpetua.
Before an interview, the Board may require a prisoner convicted of a heinous crime as defined under Republic Act No. 7659 and other special laws to undergo psychological/psychiatric examination if the prisoner has a history of mental instability, or in any case, if the Board finds a need for such examination in the light of the nature of the offense committed or manner of its commission.
SEC. 18. Publication of those Eligible for Executiv Clemency/Parole - The Board shall cause the publication in a newspaper of general circulation the names of prisoners convicted of heinous crimes or those sentenced by final judgment to Reclusion Perpetua or Life imprisonment, who may be considered for release on parole or for recommendation for absolute or conditional pardon.
SEC. 19. Objections to Petitions - When an objection is filed, the Board may consider the same by requesting the person objecting to attach thereto evidence in support thereof. In no case, however, shall an objection disqualify from executive clemency/parole the prisoner against whom the objection is filed.
SEC. 20. Documents to be Considered - The carpeta and prison record of the prisoner and other relevant documents, such as the mittimus or commitment order, prosecutor's information and trial/appellate court's decision of the case of the prisoner shall be considered by the Board in deciding whether or not to recommend executive clemency or to grant parole.
In case the prisoner has one or more co-accused who had been convicted, the Board shall consider at the same time the prison records and carpetas of said co-accused.
SEC. 21. Factors to be Considered in Petition for Conditional Pardon, Commutation of Sentence or Parole - The following factors may be considered by the Board in the grant of conditional pardon, commutation of sentence or parole:
- the age of the petitioner, the gravity of the offense and the manner in which it was committed, and the institutional behavior or conduct and previous criminal record, if any;
- evidence that petitioner will be legitimately employed upon release; c. a showing that the petitioner has a place where he will reside;
- availability of after-care services for the petitioner who is old, seriously ill or suffering from a physical disability;
- attitude towards the offense and the degree of remorse; and,
- the risk to other persons, including the victim, his witnesses, his family and friends, or the community in general, the possibility of retaliation by the victim, his family and friends.
SEC. 22. Special Factors - The Board may give special consideration to the recommendation for commutation of sentence or conditional pardon whenever any of the following circumstances are present:
- youthful offenders;
- prisoners who are sixty (60) years old and above;
- physical disability such as when the prisoner is bedridden, a deaf mute, a leper, a cripple or is blind or similar disabilities;
- serious illness and other life-threatening disease as certified by a government physician;
- those prisoners recommended for the grant of executive clemency by the trial/appellate court as stated in the decision;
- alien prisoners where diplomatic considerations and amity between nations necessitate review;
- circumstances which show that his continued imprisonment will be inhuman or will pose a grave danger to the life of the prisoner or his co-inmates; and,
- such other similar or analogous circumstances whenever the interest of justice will be served thereby.
SEC. 23. Meetings - The Board shall meet in executive session regularly or upon the call of the Chairman.
SEC. 24. Quorum - A majority of all the members of the Board shall constitute a quorum.
SEC. 25. Board Action - A majority of the members of the Board, constituting a quorum, shall be necessary to recommend the grant of executive clemency or to grant parole; to modify any of the terms and conditions appearing in a Release Document; to order the arrest and recommitment of a parolee/pardonee; and to issue certificate of Final Release and Discharge to a parolee/pardonee.
The minutes of the meeting of the Board shall show the votes of its individual members and the reason or reasons for voting against any matter presented for the approval of the Board. Any dissent from the majority opinion to grant or deny parole shall be reduced in writing and shall form part of the records of the proceedings.
SEC. 26. Executive Clemency/Parole of An Alien - The Board may recommend the grant of executive clemency or grant parole to a prisoner who is an alien. In such a case, the alien who is released on parole or pardon shall be referred to the Bureau of Immigration for disposition, documentation and appropriate action.
VI. PAROLE SUPERVISION
SEC. 27. Parole Supervision - After release from confinement, a client shall be placed under the supervision of a Probation and Parole Officer so that the former may be guided and assisted towards rehabilitation.
The period of parole supervision shall extend up to the expiration of the maximum sentence which should appear in the Release Document, subject to the provisions of Section 6 of Act No. 4103 with respect to the early grant of Final Release and Discharge.
SEC. 28. Form of Release Document - The form of the Release Document shall be prescribed by the Board and shall contain the latest l"x1" photograph and right thumbprint of the prisoner.
SEC. 29. Transmittal of Release Document - The Board shall send a copy of the Release Document to the prisoner named therein through the Director of Corrections or Warden of the jail where he is confined who shall send a certification of the actual date of release of prisoner to the Probation and Parole Officer.
SEC. 30. Initial Report - Within the period prescribed in his Release Document, the prisoner shall present himself to the Probation and Parole Officer specified in the Release Document for supervision.
If within forty five (45) days from the date of release from prison or jail, the parolee/pardonee concerned still fails to report, the Probation and Parole Officer shall inform the Board of such failure, for appropriate action.
SEC. 31. Arrival Report - The Probation and Parole Officer concerned shall inform the Board thru the Technical Service, Parole and Probation Administration the date the client reported for supervision not later than fifteen (15) working days therefrom.
SEC. 32. Mandatory Conditions of Supervision - It shall be mandatory for a client to comply with the terms and conditions appearing in the release document.
SEC. 33. Review and Modification of Conditions - The Board may, upon the recommendation of the Probation and Parole Officer, revise or modify the terms and conditions appearing in the Release Document.
SEC. 34. Transfer of Residence - A client may not transfer from the place of residence designated in his Release Document without the prior written approval of the Regional Director subject to the confirmation by the Board.
SEC. 35. Outside Travel - A Chief Probation and Parole Officer may authorize a client to travel outside his area of operational jurisdiction for a period of not more than thirty (30) days. A travel for more than 30 days shall be approved by the Regional Director.
SEC. 36. Travel Abroad and/or Work Abroad - Any parolee or pardonee under active supervision/surveillance who has no pending criminal case in any court may apply for overseas work or travel abroad. However, such application for travel abroad shall be approved by the Administrator and confirmed by the Board.
SEC. 37. Death of Client - If a client dies during supervision, the Probation and Parole Officer shall immediately transmit a certified true copy of the client's death certificate to the Board recommending the closing of the case. However, in the absence of a death certificate, an affidavit narrating the circumstances of the fact of death from the barangay chairman or any authorized officer or any immediate relative where the client resided, shall suffice.
VII. INFRACTION/VIOLATION OF THE TERMS AND
CONDITIONS OF THE RELEASE DOCUMENT
SEC. 38. Progress Report - When a parolee/pardonee commits another offense during the period of his parole surveillance, and the case filed against him has not yet been decided by the court, a Progress Report should be submitted by the Probation and Parole Officer to the Board.
SEC. 39. Report of Parole Infraction/Violation - Any violation of the terms and conditions appearing in his Release Document or any serious deviation or non-observance of the obligations set forth in the parole supervision program shall be immediately reported by his Probation and Parole Officer to the Board. The report shall be called Infraction Report when the client has been subsequently convicted of another crime.
SEC. 40. Arrest of Client - Upon receipt of an Infraction Report, the Board may order the arrest or recommitment of the client.
SEC. 41. Effect of Recommitment of Client - The client who is recommitted to prison by the Board shall be made to serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison.
SEC. 42. Cancellation of Pardon/Parole - The Board may recommend the cancellation of the pardon or cancel the grant of parole of a client if it finds that material information given by said client to the Board, either before or after release, was false, or incomplete or that the client had willfully or maliciously concealed material information from the Board.
SEC. 43. Review of Case of Recommitted Parolee - The Board may consider the case of a recommitted parolee for the grant of a new parole after the latter shall have served one-fourth (1/4) of the unserved portion of his maximum sentence.
VIII. TERMINATION OF PAROLE AND CONDITIONAL
SEC. 44. Certificate of Final Release and Discharge - After the expiration of the maximum sentence of a client, the Board shall, upon the recommendation of the Chief Probation and Parole Officer that the client has substantially complied with all the conditions of his parole/pardon, issue a certificate of Final Release and Discharge to a parolee or pardonee. However, even before the expiration of maximum sentence and upon the recommendation of the Chief Probation and Parole Officer, the Board may issue a certificate of Final Release and Discharge to a parolee/pardonee pursuant to the provisions of Section 6 of Act No. 4103, as amended.
The clearances from the police, court, prosecutor's office and barangay officials shall be attached to the Summary Report.
Sec. 45. Effect of Certificate of Final Release and Discharge - Upon the issuance of a certificate of Final Release and Discharge, the parolee/pardonee shall be finally released and discharged from the conditions appearing in his release document. However, the accessory penalties of the law which have not been expressly remitted therein shall subsist.
SEC. 46. Transmittal of Certificate of Final Release and Discharge - The Board shall forward a certified true copy of the certificate of Final Release and Discharge to the Court which sentenced the released client, the Probation and Parole Officer who has supervision over him, the client, the Bureau of Corrections, the National Bureau of Investigation, the Philippine National Police and the Office of the President.
IX. REPEALING AND EFFECTIVITY CLAUSES
SEC. 47. Repealing Clause - All existing rules, regulations and resolutions of the Board which are inconsistent with these Rules are hereby repealed or amended accordingly.
SEC. 48. Effectivity Clause - These Rules shall take effect upon approval by the Secretary of Justice and fifteen (l5) days after its publication in a newspaper of general circulation.