Former President Ramotar, in his last days in office, granted a presidential pardon to a Ravindra Deo who had been convicted of the particularly gruesome murder of a little child. The then President chose not to offer any explanation for that exercise of his exclusive power and this resulted in many attributing to him an ulterior and improper motive for his action. While the pardon became public knowledge, the process was at best opaque and the President’s action drew widespread condemnation for what was perceived as a misuse of a reserve power.
The press has reported that President Granger also exercised his power of presidential pardon shortly after being sworn in. The names, offences and sentences of, reportedly sixty convicted persons who were pardoned and released from prison have not been publicised. As their convictions would have been a matter of public record, it is reasonable to expect that their pardons should also be made public. While the pardoned persons may very well deserve their release from prison, utilising the presidential pardon in such a mysterious manner and without setting out specific criteria is a dangerous precedent.
The Guyana Bar Association does not question whether the President has such a right. He does. The centuries old practice of the King or Queen being able to show divine mercy has been handed down and incorporated in in every single Constitution since 1966. In what is referred to as the Independence Constitution of 1966, the Governor General, in the name and on behalf of the Queen, could:
- grant a pardon, with or without conditions, to any
person convicted of any offence;
- grant relief for any period, of the sentence imposed
on conviction of any offence;
- substitute a less severe form of punishment; and
- remit the whole or part of any punishment.
In the Independence Constitution, the power – or what the Constitution referred to as the prerogative of mercy – was exercisable by the Governor General on the advice of a Minister designated by him acting in accordance with the advice of the Prime Minister. Article 188 of the 1980 Constitution contains similar provisions, except that the prerogative of mercy is now vested in the President.
What causes more than a little concern over the pardons by President Granger is the secretive manner of the process. As a matter of law, the publication of the names of persons who benefit from a presidential pardon is a necessary corollary to the exercise of such power. In effect, the presidential pardon is a usurpation of the judicial process and one of the few vestiges of royal prerogative inherited from our British colonisers.
In some jurisdictions, the exercise of the presidential pardon is judicially reviewable in particular instances. This is necessary where the president may have misapplied his or her powers with regards to the type of pardon granted. Each of these pardons is expected to be used appropriate to the particular situation, and will dictate, for instance, whether a pardoned person is still liable under a civil process. Wrongdoings very often give rise to simultaneous criminal and civil liability and since a right to bring a civil action is a personal right of citizens, it is hardly up to anyone, even the President, to attempt to deprive any citizen of that right.
While the Constitution vests the prerogative of mercy in the President, it also sets out the framework within which s/he may exercise such a power. Article 188 (2) provides that the powers of the President to grant pardons, respite, substituted sentence or remission of any sentence, is exercisable only after s/he has consulted with such Minister designated for this purpose. Such designation is a constitutional function and it would seem appropriate that the designation of the Minister should be gazetted as other constitutional appointments are.
The advantage of such consultation is that it insulates the President from any accusation that s/he has acted arbitrarily. Used judiciously, the exercise of the power to pardon can be an important element of criminal justice reform which the country so badly needs.
For completeness, the Association also draws attention to the other provisions of the Constitution dealing with the prerogative of mercy. Paragraph (3) of Article 188 requires the designation of a second Minister to be consulted in cases of conviction by a court martial while Articles 189 and 190 provide for the establishment of an Advisory Council on the Prerogative of Mercy to deal with cases where persons have been sentenced to death, other than by a court martial.
The Advisory Council must consist of the Minister designated under Article 188 (2) who shall be the Chairman, the Attorney General if he is not the Chairman, and at least three and not more than five other persons of whom at least one must be a medical doctor.
It is anyone’s guess, in respect of the persons pardoned by President Granger, whether the stipulated procedures were followed, what criteria were used, and what type of pardon may have been given. Were any probation or other reports furnished on an Advisory Council, Minister or the President himself, prior to the granting of the pardon? And for those who have been pardoned, what conditions and systems have been put in place aimed to rehabilitate, reform or integrate them as full members of society? Will there be any increased penalty in the event that they commit similar or other offences in the future?
While the Bar Association supports the principle of pardon, we regret that until these questions are answered, there can be no unqualified endorsement of the President’s action.
