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ON PRESIDENTIAL PARDONS

Dec 04, 2008 Editorial

For as long as there have been governments, whether monarchial or democratic, the prerogative of executive pardons has been present.

The Crown, the President, the Head of State has always been endowed with the power to grant reprieves. But there have also been many questions and controversies surrounding the exercise of this prerogative.

It was therefore not unusual that following the free Presidential pardon granted to treason accused, Mark Benschop, a debate took place within the unofficial parliaments of Guyana and in the letters and opinion pages of newspapers, as to this act of President Jagdeo.

The issues debated were, however, not new. In fact, most had long been settled in similar debates in other jurisdictions.

They are, however, worthy of repetition at this time since they provide answers to many of the questions that are likely to once again arise in relation to the Presidential pardon granted to Mr. Philip Bynoe.

Among the contentious issues is whether the power of a pardon should be placed in the hands of one man or in the hands of a group of citizens.

The framers of the United States Constitution were convinced that there was more than just cause for this prerogative to be vested in the hands of one individual, in their case, the President.

The constitution of Guyana grants to the President of Guyana the power to exercise the prerogative of mercy. It also allows for the appointment of an Advisory Council on the Prerogative of Mercy who advises the relevant subject Minister in relation to clemency for persons convicted to death for any offence.

The Minister then advises the President, but the Minister is also free to reject the advice proffered by the Advisory Council.

The power to grant clemency ultimately, however, resides in the hands of the President who in the exercise may be guided either by advice or by his own deliberate judgment.

The exercise of this prerogative is solely the President’s and he is under no legal obligation to give reasons for his actions.

The next contentious issue was whether the powers of pardon should be extended to persons who were not convicted of offences. There is a history of case law on this point.

It is now accepted that unless the constitution provides otherwise, a person not convicted may be pardoned. The framers of our revised Constitution, however, did not wish to leave the matter to doubt.

The language of Article 188 (1) (a) is quite explicit on the point. It states: The President may grant to any person concerned in or convicted of any offence under the law, a pardon either free or subject to lawful conditions.

The construction of this article settles two contentious issues. The first of these is that the President has the authority to grant a pardon to any person, regardless of whether that person has been convicted of an offence. It is not unusual for Presidential pardons to be granted to persons not convicted.

Two cases are instructive on this point. In the first one it was necessary for a spy to be granted a pardon from possible conviction in order for information to be obtained.

In the second case, an editor refused in a criminal trial, to disclose his sources claiming privilege. Thus, a pardon was granted to allow him to testify. In both of these cases, the pardons were conditional. In the cases of Messrs Benschop and Bynoe, their pardons were free pardons with no strings attached.

The final contentious issue is whether a pardon can take effect if it has not been accepted by an accused. Case law is quite definitive on this point.

There is no requirement for acceptance. A presidential pardon is absolute. It does not require the consent of the person to whom it is granted.

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