Dear Editor,
Historically, the prerogative of the sovereign was emblematic of residual powers inherent in the dispensation and devolution of the justice system. Post-independence constitutions and more particularly, the Constitution of the Co-operative Republic of Guyana, articulated that extra-judicial component to be given expression on appropriate occasions. Compendiously and justifiably described as the “Prerogative of Mercy” in the marginal note to Art 188 of the aforementioned constitution, this power is exercisable by the president of our Republic by way of a comprehensive range of relief, viz, by way of pardon, respite, a reduction in severity, a remission of the whole or part of punishment or forfeiture due to the state.
In the exercise of this prerogative he is required to consult with “such Minister as may from time to time be designated by him” (Art 188(2)).
The exercise of this constitutional power has in the recent past become a matter of some public commentary and for this purpose it may be useful to observe that in 1996 during my first experience in the office of the Attorney-General, an initiative was undertaken to bring some measure of relief to the justice system, creating undue stresses caused by over-population of the prisons.
At that time, quarterly reports of the population of the prisons, specifying the types of offences, sentences, remand prisoners, etc, under the hand of the Director of Prisons, were sent to the Attorney General for his information and consideration. The compiled list made me feel a sense of judicious unease. It is my recollection that the Camp Street Prison housed three times the constructed capacity. This gave rise to my concerns as the principal legal advisor to the government, which had responsibility for the justice system. On my initiative, it was determined that the then Deputy DPP, Ian Chang SC, Cecil Kilkenny, the Director of Prisons and the Minister of Home Affairs Mr Feroze Mohamed would meet at the building in Camp Street, west of the prisons. Some hours after, consensus was reached that a proposal for the remission of the remaining sentence of prisoners with six months or less to serve pursuant to Art 188(d) would be taken to cabinet for discussion and recommendation to the President. It would be collectively agreed as well that persons convicted of violent, sexual and narcotic offences would not be considered for relief and the proposal, once approved, would be a bi-annual feature. The first batch consisted of at least 100 persons but shortly, I demitted office and am unaware of cabinet’s decision.
For the purposes of completion, the Minister designated under Art 188(2) need not consult the Advisory Council on the Prerogative of Mercy before so advising the President, but he may do so if he is so minded.
This power, executive in origin but extra-judicial in execution, is nonetheless constitutional. In the final analysis, to the extent that the constitution is empowered, the courts become empoldered.
Yours faithfully,
Justice Charles R Ramson SC
Attorney General and Minister
of Legal Affairs (rtd)
