President Rodrigo Duterte said that prisoners who are at least 70 years old should be released from prison, according to the law. And since he’s already 71 years old, he can no longer be jailed.
“I don’t care about that. I said I have a problem to solve. I must first solve the problems of the country. I am already 71 years old and according to the Revised Penal Code, you have to be released once you reach 70,” Duterte told the soldiers of the 3rd Infantry Division of the Philippine Army in Camp Gen. Macario Peralta Jr. in Jamindan, Capiz on Friday.
Duterte has maintained his stand on fighting illegal drugs, even with the possibility that he might go to prison for the hundreds of killings in his war against drugs.
This raised concerns among human rights advocates and even some government officials who said that Duterte seemed to be encouraging the killings, such as when he gave a shoot-on-sight order to law enforcers.
“If I order the killings of someone, you cannot arrest me. I have immunity. I have this pardoning power and if I order you to carry it out I will pardon you,” he said.
This is not the first time Duterte mentioned pardoning law enforcers accused of abuse of power in their war against drugs. During a fellowship dinner with his San Beda Law school batchmates on July 17, he said he would use his power to “grant amnesty” and even prepare “pre-signed” pardons, including a pardon for himself.
But litigation lawyer Raymond Fortun said that Duterte thought wrong about being safe from imprisonment because of his advanced age.
“With all due respect to the President, he is wrong here,” Fortun said in his Facebook post.
“Age is merely a MITIGATING circumstance (Art. 13, Sec 2, RPC). It does NOT mean that he cannot be charged and, if found convicted, cannot service his sentence in jail. Being 70 years of age merely reduces the penalty to its minimum (or, if there are other mitigating circumstances, by 1 to 2 degrees lower),” he said.
You can refer to the Revised Penal Code here.
Fortun even cited Senator Juan Ponce Enrile’s case when he was charged with plunder.
“Government prosecutors know this when they charged Sen. Juan PpE of plunder even as the latter was more than 70 years old,” he added.
Enrile was indicted with plunder, along with Senators Bong Revilla and Jinggoy Estrada, and for the violation of the Anti-Graft and Corrupt Practices Act on June 6, 2014 in connection to the Priority Development Assistance Fund (PDAF) scam, allegedly masterminded by Janet Lim Napoles.
Fortun continued with his impromptu law lecture by saying, “The death penalty is also not imposed when the guilty person is more than 70 years old (Art. 47, RPC). In such an instance, the penalty to be imposed is commuted to reclusion perpetua (Art. 38, RPC). A 70-year old can still be jailed.”
The lawyer also talked about what happens to a convict who committed another crime and when a pardon might be given to someone 70 years older.
“Finally, a person who shall commit ANOTHER crime after having been convicted by final judgment, before beginning to serve such sentence, or while serving the same shall be punished by the maximum penalty for the new felony. However, if the person who committed the felony is more than 70 years old, he shall be pardoned IF he has already served out his original sentence. The premise here is that the felon has served his sentence for an earlier conviction to invoke this provision,” Fortun said.
“Whether or not the President can be jailed, we can only find out once he ends his term in 2022. Currently he is immune from suit,” Fortun added.
He even jokingly added, “Oh crap. If this was a Bar question, I just gave away the answer. Sorry!”
And the comments section, as usual, featured Fortun’s interaction with other Facebook users.
Someone commented about Duterte being sarcastic for making this statement, but Fortun replied with this.
Another commented about whether those who voted for Duterte would “allow him to go to jail.”
And once again, Fortun clarified that even at 77, when Duterte steps down from the presidency, there is still a possibility of him going to jail if someone files a charge against him.
One commenter cited Enrile’s release due to humanitarian reasons and Fortun said that the cycle of putting the former Presidents should stop.
What is probably one of the most important questions in the comments section is whether Duterte can truly pardon himself, as what he previously said he would do, and Fortun said the Constitution does not allow it.
Someone piped up that Duterte will always have the support of the people if the country is doing well, but Fortun pointed out that while everyone’s hoping for him to do well, it is also important to point out if he did something wrong.
Another Facebook user joked, saying that Fortun will likely be bashed and accused of being a drug protector for making this post and going against Duterte.
Aside from this post, Fortun has also spoken up about two serious matters – on how the excuse “Nanlaban kaya binaril” from cops is no longer believable and how Duterte violated the 5 police generals’ Constitutional rights.