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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Pardon Power

Andrew Novak

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 24 May 2024

Subject(s):
Pardon power — Executive power — Amnesty

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum
Managing Editor: Martina Mantovani

A.  Definitions

1.  The pardon power (or, the power to pardon) refers to the executive power to alter, cancel, or substitute a criminal sentence or punishment outside of the judicial branch. This power is also frequently referred to as executive clemency. The pardon power is most commonly exercised by a head of state, but it may also be exercised by or with the consultation of a government minister, a cabinet, a specially-appointed committee, or a legislature.

2.  A pardon completely exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he or she has committed. A pardon may be absolute or conditional, that is, the person pardoned may have to fulfil certain criteria before a criminal conviction will be erased (Black’s Law Dictionary 872).

3.  A full pardon is only the broadest exercise of executive clemency. In many systems, an executive may also exercise lesser forms of clemency, including substitution of a greater sentence with a lesser one, known as a ‘commutation of sentence.’ An executive may also temporarily postpone a criminal sentence or punishment, known as a ‘reprieve’ or a ‘respite.’ The pardon power may include a ‘remission’ power, to cancel fines or forfeitures. Finally, where a criminal conviction carries collateral consequences, such as restrictions on employment or the right to vote, the clemency power may include a ‘restoration of rights’ (Black’s Law Dictionary 230, 1015, 1021).

4.  A pardon may be granted to an individual or to a class of individuals. In English common law, a collective pardon was frequently called a ‘group pardon’ or a ‘general pardon’ if it applied to a class of persons, such as wartime deserters after the end of a conflict (Lacey 85–89). This collective use of the pardon power prior to conviction is analogous to the amnesty power in European civil law systems. However, in most civil law systems, an amnesty was typically passed by a legislature and in common law systems, a general or group pardon was usually issued by an executive. This distinction has blurred in practice, as many countries have both an amnesty and pardon power. In France and Russia, for instance, the legislature has an amnesty power while the president maintains a constitutional pardon power (Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) Main Text, Title II The President of the Republic, Art. 17; Title V On Relations between Parliament and the Government, Art. 34 (Fr); Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014) Main Text, Chapter 4 The President of the Russian Federation, Art. 89 (c); Chapter 5 The Federal Assembly, Art. 103 (1) (g) (Russ)). In addition, some jurisdictions use these terms in slightly different ways. In Taiwan, the president has both an amnesty and pardon power (Constitution of the Republic of China: 25 December 1947 (as Amended to 10 June 2005) Main Text, Chapter IV The Presidency, Art. 40 (Taiwan)). In Lebanon, the president can issue ‘special pardons’ (that is, individual pardons) by decree, but general pardons or amnesties require an act of the legislature (Constitution of the Lebanese Republic: 23 May 1926 (as Amended to 4 September 2004) Main Text, Title II The Powers, Chapter IV Executive Power, First: President of the Republic, Art. 53 (9) (Leb)).

5.  Depending on the jurisdiction, even a full pardon may only cancel or nullify a criminal punishment and remove the disabilities of a criminal conviction. It may not restore a person to innocence where the conviction was wrongful, and, therefore, the conviction may be used in subsequent prosecutions. In legal systems where a full pardon only removes the disabilities of conviction and does not restore a wrongfully-convicted offender to innocence, a number of jurisdictions have in recent years created another category of pardon for cases of actual innocence. These may be variously referred to as ‘exoneration,’ ‘pardon of innocence,’ or ‘absolute pardon’ (see eg, Tennessee Code Annotated § 40-27-109 (2010) (Tennessee); North Carolina General Statute Annotated § 15A-149 (2014) (North Carolina)). Pardons based on actual innocence are treated as acquittals in most jurisdictions for purposes of collateral consequences of conviction (Steiner 974 n 108).

6.  Because a pardon only cancels a criminal punishment and removes disabilities of a criminal conviction, it generally does not mitigate any claim of civil liability to a third party for the underlying act (Steiner 1003).

B.  Origin of the Pardon Power

7.  In common law countries, the pardon power descends from the king’s prerogative of mercy dating at least to the time of Edward the Confessor (1042–66). Because the King was sovereign, crime against the state was crime against the King himself, and he alone could reprieve it. Clemency remained robust even with parliamentary sovereignty in England, in part because of the overly harsh application of criminal law, and in particular the mandatory death penalty (Grupp 52–53). In addition, the conditional pardon eased chronic labour shortages in the colonies as transportation to a penal colony was offered in exchange for a pardon. After Queen Victoria ascended to the throne in 1837, Parliament delegated the mercy power to the Home Secretary and the monarch’s role became a formality (Moore 19; Rolph 19–20). In the British Empire, the royal prerogative of mercy was delegated to colonial governors, usually without interference from the Colonial Office (Miners 86). This diffusion of the prerogative of mercy formed the basis of the constitutional pardon power in common law constitutions.

8.  By contrast, the amnesty power, found in many continental European and Latin American constitutions, has different origins. The word ‘amnesty’ originates from ancient Greek, in which it referred to amnesia or oblivion. Amnesties have frequently sought to provide soldiers or rebels opportunity to stop fighting and, for this reason, have historically been a frequent component of negotiated political transitions. However, the use of the amnesty power today is less widely accepted than the use of the pardon power due to international norms that forbid impunity for violators of human rights (international human rights law and municipal law) (David 395).

9.  In pre-revolutionary France, the king, an absolute monarch, had inherent power to judge and pardon crimes. After the French Revolution, however, this conception of sovereignty was rejected and transferred to the legislature. Restored under Napoleon and later emperors, the pardon power remained in tension with the legislative power under succeeding constitutions. As noted, the French constitution of 1958 includes both a presidential pardon power and a legislative amnesty power. However, given the traditional scepticism in France towards executive power, it is the legislative amnesty power that is more frequently used in both individual and collective clemency decisions (Lévy 554). The French constitution was amended in 2008 to remove the amnesty power from the president in favour of a purely legislative amnesty power; the president may still grant individual pardons. Similarly, in Italy, a constitutional referendum in 1992 removed the amnesty power from the president and delegated it to the legislature alone. As in France, the president may still grant individual pardons (Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) Main Text, Part II Organization of the Republic, Title I The Parliament, Art. 79; Title II The President of the Republic, Art. 87 (It)). On the other hand, the constitution of Russia includes both an unlimited presidential pardon power and an unlimited legislative amnesty power.

10.  Clemency also existed in non-Western legal traditions. Among the Kuba people of modern-day Democratic Republic of the Congo, a king could grant mercy from a death sentence, as only he was authorized to take a human life (Karimunda 21). Mercy also has a long tradition in Islamic law (Islamic constitutionalism). The Qur’an recognizes and extols acts of pardon and amnesty in several verses. In modern Iran, a victim’s family may grant a pardon, a reflection of the practice of the Prophet to encourage forgiveness (Osanloo 584).

11.  Challenges to the legitimacy of executive clemency as an institution are as old as the power’s exercise, as it fundamentally provides for unchecked executive discretion in a legal system of objective rules (Sarat 1). Objections to misuse of the pardon power are not new. As Cesare Beccaria (1738–1794) expressed, if a pardon is just, the law must be wrong; if the law is just, the pardon must be wrong. Similarly, St Anselm of Canterbury (1033–1109) wrote, if God is merciful to sinners, why not to all whose sins are similar? (Walker 27). Criticisms of the mercy power accompanied US President Gerald Ford’s pardon of former President Richard Nixon, as well as later controversial pardons by other US presidents. When clemency is rarely used as an act of grace, it risks the perception that it is arbitrary or discriminatory; when it is used frequently as curative legislation, it faces separation of power challenges. Virtually every constitutional system worldwide provides for a mechanism for clemency or pardon. Nonetheless, the use of clemency has declined in world-historical terms due to the abolition of the mandatory death penalty and the rise of modern institutions for remissions, parole and probation, and in most systems, it is only a residual power.

C.  Comparative Constitutional Framework of the Pardon Power

1.  The Decision-Maker

12.  The structure of the clemency authority varies widely among constitutional orders. Most frequently, the pardon power is exercised by an executive acting alone. In a large number of countries, however, the constitution requires that the executive consult with another minister (frequently a justice minister), a cabinet, a specially appointed mercy committee, a judicial body, or a legislature. However, other structures are not uncommon. In a number of other jurisdictions the executive requires a favourable recommendation from the legislature, a cabinet, or a specially appointed committee before he or she may exercise clemency. Finally, some constitutions, especially among states of the United States, delegate the pardon power partially or exclusively to an appointed pardons board.

13.  The basic constitutional pardon power is held by an executive acting alone. This system prevails in a large portion of the world, including the United States, Russia, Bangladesh, and South Africa (Constitution of the United States of America: 17 September 1787 (as Amended to 7 May 1992) Art. II, Section II, Paragraph 1 (US); Constitution of the People’s Republic of Bangladesh: 16 December 1972 (as Amended to 30 June 2011) Part IV The Executive, Chapter 1 The President, Art. 49 (Bangl); Constitution of the Republic of South Africa: 16 December 1996 (as Amended to 26 March 2009) Main Text, Chapter 5 The President and National Executive, Art. 84 (j) (S Afr)). However, where a head of state is a non-political figure or is not directly elected, constitutions frequently require the head of state to consult with a democratically accountable minister (frequently the minister of justice) or with the cabinet before granting clemency. These jurisdictions may differ as to whether the advice is binding or not. In New Zealand, the governor-general must seek the advice of the minister of justice (Blundell, 200). In Zimbabwe and Malta, the president must consult with the entire cabinet, though the recommendation is non-binding (Constitution of the Republic of Zimbabwe: 22 May 2013, Main Text, Chapter V The Executive, Part IV Executive Functions, Art. 112 (1) (Zim); The Constitution of the Republic of Malta: 2 September 1964 (as Amended to 2007), Main Text, Chapter VII The Executive, Art. 93 (2) (b) (Malta)). Finally, although Singapore’s constitution states that the president ‘may, on the advice of the Cabinet’ grant clemency, the Court of Appeal has ruled that the cabinet’s recommendation is binding (Constitution of the Republic of Singapore: 9 August 1965 (as Amended to 28 November 2008), Part V The Government, Chapter 1 The President, Art. 22P (Sing); Yong Vui Kong v Attorney General [2011] SGCA 9 (Sing)).

14.  Also common are constitutional regimes that require an executive to consult with (and less frequently, to receive approval from) a specially appointed clemency committee. This structure is especially common in former British colonies, as it is a codification of the colonial practice, though the constitution of the United Arab Emirates provides for such a committee as well (Constitution of the United Arab Emirates: 18 July 1971 (as Amended to 2004), Main Text, Section 5 The Judiciary in the Union and the Emirates, Art. 107 (UAE)). Most constitutions in the Commonwealth Caribbean and common law Africa establish such a structure, as do the constitutions of Malaysia, Papua New Guinea, and the Solomon Islands.

15.  In a handful of constitutions, the executive is required to consult with a general advisory body that advises him or her on many different executive functions, including the mercy power. This is a variation on a constitutional framework requiring consultation with a cabinet or clemency committee. In Ghana and Nigeria, the president must consult with a council of state, a body composed of prominent citizens akin to a traditional council of elders, with respect to the mercy power as well as a host of other policy issues (Constitution of the Republic of Ghana: 28 April 1992 (as Amended to 16 December 1996), Chapter 8 The Executive, Art. 72 (Ghana); Constitution of the Federal Republic of Nigeria: 29 May 1999 (as Amended to 29 November 2010), Chapter IV The Executive, Part I The Federal Executive, Art. 175 (Nigeria)). In Tonga and Brunei, the heads of state must consult with their privy councils in exercising many of their executive functions, including pardons (Constitution of the Kingdom of Tonga, 4 November 1875 (as Amended to 14 January 2011), Part II Form of Government, Art. 37 (Tonga); The Constitution of Brunei Darussalam: 29 September 1959 (as Amended to 21 February 2006 and as Reprinted in 2011) Part IVA Pardons Board, Art. 9 (Brunei Darussalam)). Similarly, in Massachusetts and New Hampshire, the governor must consult with a specially elected body known as a Governor’s Council or Executive Council, respectively, which also advises on judicial appointments and budgetary matters (Constitution of the State of New Hampshire: 31 October 1783 (as Amended to 7 November 2006) Part Second, Art. 52 (US); Constitution of the Commonwealth of Massachusetts: 25 October 1780 (as Amended to 7 November 2000) Chapter II Executive Power, Section 1 The Governor, Art. 8 (US)).

16.  Finally, the pardon power may be vested partially or exclusively in a pardons board without executive input. In eight US states, the governor may only grant clemency upon a favourable recommendation of a board of pardons. The final decision, however, is the governor’s alone (Novak 79–81). In nine additional US states, the clemency power is vested exclusively in a board. In three of these states, Nevada, Minnesota, and Nebraska, the governor sits as an ex officio member of the board. In Nevada, where the board consists of the governor, justices of the supreme court, and the attorney general, the governor must vote in favour of clemency in order for it to be granted, thereby making the executive role more powerful (Constitution of the State of Nevada: 31 October 1864 (as Amended to 2013) Art. 5 Executive Department, Section 14 (1) (US)). In the other six states in which clemency is vested exclusively in a board, all members are appointed by the governor. In Utah, for instance, the Board of Pardons and Paroles has plenary clemency authority; the board is appointed by the governor and confirmed by the state senate (Constitution of the State of Utah: 5 November 1895 (as Amended to 6 November 2012) Art. VII Executive Branch, Section 12 (US)). Finally, in one US state, Rhode Island, the governor may only grant pardons upon the approval of the upper house of the legislature (Constitution of the State of Rhode Island and Providence Plantations: 23 November 1842 (as Amended to November 4, 2014) Art. IX Of the Executive Power, Section 13 (US)).

2.  Federalism

17.  Federal constitutions may delineate the pardon power for both national executive and state or provincial ones. The constitutions of Nigeria, Malaysia, Micronesia, and Tanzania (vis-à-vis the island of Zanzibar) simultaneously provide concurrent pardon powers for national and state executives (Constitution of the Federated States of Micronesia: 1 January 1981 (as Amended to 29 August 1990), Art. X Executive, Section 2 (c) (Micr); Constitution of the United Republic of Tanzania: 26 April 1977 (as Amended to 30 June 1995) Chapter II The Executive of the United Republic, Art. 45 (3) (Tanz); Constitution of the Federal Republic of Nigeria: 29 May 1999 (as Amended to 29 November 2010) Chapter IV The Executive, Part I The Federal Executive, Art. 175; Part II State Executive, Art. 212 (Nigeria); Constitution of Malaysia: 31 August 1957 (as Amended to 1 August 1994) Part IV The Federation, Chapter 3 The Executive, Art. 42 (Malay).

18.  As a general rule, a federal executive typically cannot pardon state-level crimes, while state executives cannot pardon federal crimes. This is the rule in the United States (Stanish 3). Similarly, the Nigerian constitution restricts the presidential pardon power to offences prohibited in acts of the National Assembly and pardon power of state governors to acts passed by state assemblies. The president of Tanzania may only pardon crimes in Zanzibar under laws passed by the national parliament and specifically applied to Zanzibar; the sultan of Zanzibar may pardon under local law. However, some constitutions create specific exceptions to this general rule. For instance, the constitution of India provides that the president can pardon all death penalty cases, even those that arise under state law (Constitution of the Republic of India: 26 January 1950 (as Amended to 13 January 2012) Part V The Union, Chapter I The Executive, Art. 72 (1); Part VI The States, Chapter II The Executive, Art. 161) (India)).

3.  Scope of the Pardon Power

19.  In most constitutions, an offender must be convicted before a pardon may be granted. This ‘after conviction’ language is the majority rule in the common law world, following English conventions. Constitutions with after conviction language in the pardon power include Jamaica, Ghana, Kenya, and India (Jamaica (Constitution) Order (SI 1962/1550): 23 July 1962 (as Amended to 1999) Main Text, Chapter VI Executive Powers, Art. 90(1)(a) (Jam); Constitution of the Republic of Ghana: 28 April 1992 (as Amended to 16 December 1996) Main Text, Chapter 8 The Executive, Art. 72(1)(a) (Ghana); Constitution of the Republic of Kenya: 6 May 2010, Main Text, Chapter Nine The Executive, Part 2 The President and Deputy President, Art. 133(1)(a) (Kenya)). However, some constitutions specifically allow the executive to pardon before conviction, including in Guyana, Malta, Nigeria, and Zimbabwe (Constitution of the Co-operative Republic of Guyana Act, 1980 (Act No 2 of 1980): 14 February 1980 (as Amended to Act No 22 of 2007), Title V The Executive, Art. 188 (Guy)). Similarly, the United States federal constitution allows the president to pardon before conviction, as famously illustrated with President Gerald Ford’s pardon of former President Richard Nixon, which occurred before prosecution. In civil law, pardons are also typically limited to after conviction (Sebba 117). However, exceptions include Iceland, where the head of state may order withdrawal of prosecution, and the Czech Republic, where he or she can quash criminal proceedings (Constitution of the Republic of Iceland: 17 June 1944 (as Amended to 24 June 1999) Main Text, II, Art. 29 (Ice); Constitution of the Czech Republic: 16 December 1992 (as Amended to 14 November 2002) Main Text, Chapter 3 Executive Power, Art. 62(g) (Czech)).

20.  Impeachment of public officials may be excluded from the pardon power. In English constitutional law, the Act of Settlement of 1701 stated that a pardon was not pleadable to impeachment in the House of Commons (Act of Settlement 1701 (England), Part III). This exception also exists in the constitutions of Micronesia, Liberia, Malawi, and the United States, which inherited the English convention (Constitution of the Republic of Liberia (Approved Revised Draft): 3 July 1984, Main Text, Chapter VI The Executive, Art. 59 (Liberia); Constitution of the Republic of Malawi: 16 May 1994 (as Amended to 24 May 1999) Main Text, Chapter 8 The Executive, Art. 89 (2) (Malawi)). Other countries that have an exclusion or legislative veto for impeachment pardons include Norway, Belgium, Iceland and the Philippines (Constitution of the Kingdom of Norway: 17 May 1814 (as Amended to 9 May 2014) Main Text, B. Executive Power, the King, the Royal Family, and Religion, Art. 20 (Nor); Coordinated Constitution of the Kingdom of Belgium: 17 February 1994 (as Amended to 22 December 2008) Main Text, Title III Power, Chapter III The King and Federal Government, Section II The Federal Government, Art. 103 (Belg); Constitution of the Republic of the Philippines: 2 February 1987, Main Text, Art. VII Executive Department, Sec. 19 (Phil)).

21.  A number of constitutions contain other exceptions to the pardon power. The constitution of Malaysia creates an alternative process for self-pardons by the head of state and state governors, as well as pardons of close family members, in order to prevent a conflict of interest. Several constitutions, including those of Nigeria, Uganda, and Zambia, provide an alternative process for pardons of military offences or pardons that are passed by military courts, owing to the exigencies of military operations or to historical abuse of this right under previous military rule (Constitution of the Republic of Uganda: 22 September 1995 (as Amended to 2005) Main Text, Chapter 7 The Executive, Art. 121 (6) (Uganda); Constitution of the Republic of Zambia: 2 August 1991 (as Amended to 28 May 1996) Main Text, Part IV The Executive, Art. 60 (2) (Zam)).

22.  Treason may also be excluded from the pardon power. The constitution of Spain contains an exception for treason (Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011) Main Text, Part IV Government and Administration, Art. 102 (Spain)). Such a provision also exists in the constitutions of 22 states of the United States (Novak, 110). In addition, Argentina renders unpardonable any acts of force against the institutional order and the democratic system (Constitution of the Argentine Nation: 23 August 1994, Main Text, First Part, Chapter II New Rights and Guarantees, Art. 36 (Arg)).

23.  Under Art. 6 (4) International Covenant on Civil and Political Rights (1966), any person sentenced to death must have the right to seek clemency, pardon, or amnesty in all cases (International Covenant on Civil and Political Rights (opened for signature 19 December 1966), 999 United Nations Treaty Series 85 (entered into force 23 March 1976), Art. 6 (4)). As a result, a constitution that excludes a death-eligible crime from the scope of the pardon power may breach this provision. The constitution of Iraq does not permit presidential pardons for terrorism even though conviction can result in a death sentence; in addition, international crimes and corruption are also unpardonable (Constitution of the Republic of Iraq: 15 October 2005, Main Text, Section III The Federal Government, Chapter 2 Executive Branch, Art. 73 (A) (Iraq)). In addition, several Latin American constitutions forbid amnesties for persons implicated in genocide, war crimes, or other gross violations of human rights. In the constitution of Chile, pardon for terrorism is prohibited except to reduce a death sentence to life imprisonment (Political Constitution of the Republic of Chile: 8 August 1980 (as Amended to 18 August 2005) Main Text, Chapter I Institutional Foundations, Art. 9 (Chile)). Venezuela prohibits amnesty for crimes against humanity and war crimes, while Ecuador adds genocide, torture, political homicide and forced disappearance (Constitution of the Bolivarian Republic of Venezuela: 15 December 1999, Main Text, Title III Of the Duties, Human Rights and Guarantees, Chapter 1 General Provisions, Art. 29 (Venez); Constitution of the Republic of Ecuador: 28 September 2008 (as Amended to 7 May 2011), Main Text, Title IV Participation and Organization of Power, Chapter Two Legislative Function, Art. 120 (13) (Ecuador)).

4.  Constitutional Clemency Procedures

24.  One of the most common constitutional clemency procedures is to require that the trial judge, or the chief justice where the trial judge is unavailable, provides a written report or recommendation to the pardon authority in all death penalty cases. This was the convention in England and is codified in some twenty-three common law constitutions (Novak 149–50). Several constitutions contain a variation on this provision: in Sierra Leone, a medical report of the prisoner must accompany the trial judge’s recommendation; Singapore also requires a report from the appellate judges that affirmed the death sentences (Constitution of the Republic of Sierra Leone: 24 September 1991 (as Amended to 7 February 2002) Main Text, Part II Executive Powers, Art. 63 (2) (Sierra Leone); Constitution of the Republic of Singapore: 9 August 1965 (as Amended to 28 November 2008) Main Text, Part V The Government, Chapter 1 The President, Art. 22P (2) (Sing)).

25.  Constitutions typically do not provide significant detail as to the mechanics of the mercy process. The procedure may be informal, bureaucratic, or secretive. In the United States, four state constitutions (Idaho, Utah, Delaware and Pennsylvania) specifically authorize public hearings for all pardon applicants (Constitution of the State of Idaho: 3 July 1890 (as Amended to 6 November 2012) Main Text, Art. IV Executive Department, Section 7 The Pardoning Power, Paragraph 1 (Idaho); Constitution of the State of Utah: 5 November 1895 (as Amended to 6 November 2012) Main Text, Art. VII Executive Department, Section 12 (2) (b) (Utah); Constitution of the State of Delaware: 4 June 1897 (as Amended to 26 June 2013) Main Text, Art. VII Pardons, Section 1 (Delaware); Constitution of the State of Pennsylvania: 23 April 1968 (as Amended to 4 November 2003) Main Text, Art. IV The Executive, Section 9 (a) (Pennsylvania)). Several national constitutions, including Belize, Zimbabwe, and Tuvalu, require that grants of clemency be publicly reported to the legislature or in an official publication to prevent secret pardons (Constitution of Belize: 20 September 1981 (as Amended to 25 October 2011) Main Text, Part V The Executive, Art. 54 (18) (Belize) Constitution of Tuvalu: 15 September 1986, Main Text, Part V The Executive, Division 5 The Power of Mercy, Art. 80 (2) (Tuvalu)).

26.  In many countries, especially where the head of state is indirectly elected or non-political, he or she may require a countersignature by another minister for a pardon to be valid. The hereditary monarchs of Norway, Thailand, and Morocco require a countersignature from the prime minister in issuing royal decrees or acts, including exercises of the pardon power (Constitution of the Kingdom of Morocco: 1 July 2011, Main Text, Title III On the Monarchy, Arts 42, 58 (Morocco); Constitution of the Kingdom of Thailand (Interim) (BE 2557): 22 July 2014, Main Text, Sections 22, 25 (Thai)).

5.  Death Penalty Cases

27.  Some constitutional systems provide a special process for death row inmates, usually to ensure heightened due process protections. In Ireland, the 1937 constitution required the president to exercise clemency in capital cases but permitted delegation of the power to another minister in non-capital cases (this provision was amended in 2002 after abolition of the death penalty) (Constitution of Ireland: 29 December 1937 (as Amended to 4 October 2013) Main Text, The President, Art. 13 (6) (Ir)). In Cyprus, the 1960 constitution established a bi-communal system in which the Greek president and the Turkish vice president could pardon members of their respective communities in death penalty cases. Where the perpetrator and victim were of two different communities, the president and the vice president were required to agree; in the event of a disagreement, the vote of clemency would prevail (Constitution of the Republic of Cyprus: 16 August 1960 (as Amended to 21 November 1996) Main Text, Part 3 The President of the Republic, The Vice President of the Republic and the Council of Ministers, Art. 53 (2) (Cyprus)). In Zambia, the president may consult with an advisory mercy committee in all clemency matters; however, he is required to consult with the committee in capital cases (Constitution of the Republic of Zambia: 2 August 1991 (as Amended to 28 May 1996) Main Text, Part IV The Executive, Art. 60 (4) (Zam)).

D.  Judicial Review and the Pardon Power

28.  In common law, the royal prerogative of mercy was not subject to judicial review. Some constitutions, like that of Belize, codify the traditional rule and specifically indicate that courts shall not inquire into the clemency process. However, with the United Kingdom House of Lords decision in Council of Civil Service Unions v Minister of Justice, a majority of the Law Lords found that the royal prerogative powers were not immune from judicial review based on principles of administrative law (Council for Civil Service Unions v Minister for the Civil Service [1983] UKHL 6). Subsequently, British courts determined that some aspects of the prerogative of mercy were amenable to judicial review, though the criteria used in determining whether a pardon should be granted was not justiciable (Queen v Secretary of State for the Home Department (Ex Parte Bentley) [1993] EWHC Admin 2 (7 July 1993)). This decision has been followed in Australia, Canada and New Zealand (Burt v Governor-General [1992] 3 NZLR 672 (NZ); Yasmin v Attorney General [2015] FCA 91 (Austl); Thatcher v Attorney General [1997] 1 FC 289 (Can)). In 2000, the Judicial Committee of the Privy Council ruled that the mercy process was not entirely beyond review in Lewis v Attorney General of Jamaica. According to the Court, judges could inquire into, for instance, whether the executive consulted with a mercy committee, where required; whether the committee refused to look at required information; or whether members of the committee were unqualified to sit on it (Lewis v Attorney General of Jamaica [2000] UKPC 35).

29.  Countries where the pardon power originates in a written constitution have different constitutional approaches to judicial review of the pardon power. The Supreme Court of India ruled in Maru Ram v Union of India that grants of clemency could not be ‘irrelevant, irrational, discriminatory, or mala fide(Maru Ram v Union of India (1978) 2 SCR 621, 658 (India)). The Supreme Court has quashed clemency orders where an executive was not told of pertinent facts in a prisoner’s case or where irrelevant considerations entered the decision-making process (Swaran Singh v State of Uttar Pradesh (1998) 4 SCC 72 (India); Satpal v State of Haryana (2000) 5 SCC 170 (India)). By contrast, in the United States, the Supreme Court has placed almost no limits on the federal or state pardon powers. However, the concurring opinion of Justice Sandra Day O’Connor in Ohio Adult Parole Authority v Woodard is deemed to be controlling; she concludes that ‘some minimal procedural safeguards apply to clemency proceedings’ and that judicial intervention might be warranted if an official merely flips a coin (Ohio Adult Parole Authority v Woodard (1998) 118 SCt 1244). Singapore’s Court of Appeal has even more narrowly interpreted judicial review of the pardon power, acknowledging a theoretical right to review but indicating that the clemency process was the prerogative of the executive (Yong Vui Kong v Attorney General [2011] SGCA 9).

30.  Both civil law and common law jurisdictions have wrestled with whether discriminatory grants of clemency could be constitutional. In South Africa, the Constitutional Court upheld a blanket commutation for young mothers of small children even though it did not include a commutation for young fathers of small children. The Court found that the commutation did not constitute sex discrimination (President v Hugo (1997) (4) SA 1 (CC)). In Portugal, the Constitutional Court determined that a legislative general pardon did not breach the equality provision of the constitution simply because it required payment of a fee and an indigent petitioner could not afford the fee (Generic Pardon of Sentences, Ruling No 488/08 [2008] PTCC 10 (7 October 2008)).

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