Beyond pardon

The political hullabaloo about presidential pardons should not be allowed to condition the public to forget the quality of mercy. Our humane Constitution gives the President the prerogative of mercy. He has the power to grant to any person concerned in or convicted of any offence a pardon, either free or subject to lawful conditions; a respite, either indefinite or for a specified period, of the execution of punishment imposed on him; to substitute a less severe form of punishment; remit the whole or part of any sentence, or any penalty or forfeiture otherwise due to the state on account of any offence.

The prerogative of mercy also extends to a death sentence. That is not what is under popular discussion. The public buzz is about whether the presidential prerogative should continue, given that so many lawyers are seeking recourse to it on behalf of convicted clients.

Leave politics, political stancing and hypocrisy aside, stick to the reality: The President's prerogative of mercy is one of his functions subject to the advice of the Cabinet, or of a minister acting under the general authority of the Cabinet. Exercise of the prerogative, therefore, should be visible and transparent, and subject to the rule of the individual and collective political accountability of the members of the Cabinet. They are responsible, and must always answer to the people.

Accountability should ensure that presidential prerogative does not become the equivalent of free pastizzi at a social do. And, for sanity's sake, let us not forget that it is not really a pardon - exercise of prerogative leaves the convicted person guilty as proven, but may ease or lift his punishment. The Cabinet or the Justice Minister recommended it for a very few reasons, mostly built up by precedent.

Some are controversial, like when the government uses the prerogative to construct a protective bubble around an accused person so that he may reveal actual or supposedly bigger fish. Most turn on considerations of humaneness, the state of health of a convicted person, undue punishment relative to the crime. Whatever the reason, presidential giving of mercy has to be few and far between.

For society always requires a balance between mercy and the need for justice to be seen to be done. Suffering punishment is at once a form of retribution by the convicted accused, a deterrent to others, and opportunity for reform. Mercy wells from a deeper source within all of us. Sad are those who cannot forgive at least part of the penalty to be paid by those proven guilty beyond reasonable doubt. Yet, to plead for mercy as a matter of course, which many lawyers seem to be doing as a last resort, can diminish the true meaning of the presidential prerogative.

While such considerations need to be kept in full view in the ongoing public debate, the discussion should not alienate public attention from what is truly beyond pardon within the application of the rule of law itself. There can be no pardon for the delays that continue to make a mockery of our system of justice.

Reading the date of what originally triggered court action once a sentence is given is proof enough. Those who do get a sentence are the lucky ones. Hundreds more trudge to the law courts for years on end, without any conclusion to their case coming in sight.

Years ago I encountered a woman in the law courts. I did not know her. She turned to me because I happened to be there at that moment in time when her indignation burst over. "When are cases ever finished, here," she cried. "My wrangling with my former husband has been going on for 14 years. That's how long I have been toing and froing to this hell hole!"

Justice delayed is beyond pardon. Rather than considering removing the President's prerogative of mercy, a provision might be considered to allow him to receive submissions from persons whose case has been pending inordinately for years.

As a basis, could the Justice Minister start regularly publishing details about the commencement of outstanding cases, shown by category?


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