Today the Bar Association continues the discussion we began in our last column on presidential pardons, prompted by the granting of pardon by Presidential David Granger to some score of persons. We note and welcome the fact that even though it might have been purely coincidental, President Granger, very soon after the Bar Association’s column appeared, addressed the matter in a speech to students marking Education Month. In explaining his action, Mr. Granger placed emphasis mainly on the apparent age of the persons who were pardoned, stating that youths ought to be in school and not in jail and promising to exercise his prerogative again next year.
There was no suggestion by the Bar Association or by the President that the pardoned persons, presumably young people, were not properly tried and convicted of offences under the law passed by the National Assembly. The question then is whether laws such as the Juvenile Offenders Act Chapter 10:03 and the Probation of Offenders Act Cap. 11:04, which are designed to offer rehabilitation of young offenders, are inadequate.
The Juvenile Offenders Act provides for the separation of arrested young offenders from adults, for the release, with or without sureties, of persons apparently under the age of seventeen years who are arrested but who cannot be brought forthwith before a court, for Holding Centres for Juveniles for those who cannot be released for statutorily defined reasons, and for matters involving children and young persons to be tried in Juvenile Courts.
The Probation of Offenders Act grants the court the power to permit the conditional release of persons even where a charge punishable on summary conviction is proved. Where the person is a juvenile, the court may, having regard to the circumstances, and without proceeding to conviction, make a probation order. If the person is not a juvenile, the court may still make a probation order but it must first convict the offender.
One precondition in both cases is that the person must agree to comply with the order. The Act also contains provisions if the probationer breaches the conditions of the probation order.
It is the submission of the Bar Association that if the Administration is not satisfied with the state of the law then it should take steps to amend the relevant laws. The Bar Association in the last column stated that we welcome the announcement of the establishment of a permanent arrangement for law reform. Indeed, we hope that in this discussion on pardon, sentencing and probation, the need for judicial reform in its broader sense may find a place on the agenda.
Now to return to the discussion on the presidential pardon. The power of the Executive to grant pardon exists in constitutions across the world, and is universal among countries with a common law tradition, including the USA.
Depending on its constitutional framework, pardons may be granted by elected or non-elected presidents so that in India, Jamaica and Trinidad and Tobago pardons are granted by the President which is not an elected office, but in the US the power vests in an elected President.
One leading Indian constitutional expert sees the pardon not as an act of grace but as a part of the constitutional scheme. As a result, the issue of the presidential pardon has arisen in numerous court cases, settling past issues and setting the legal framework for future guidance. The Indian court has refused to lay down any requirement*+ for any specific guidelines, noting the “myriad kinds and categories of cases with facts and situations varying from case to case…” What the Indian courts have done however, and this is recognised in countless cases, is establish that as a public power, “[the pardon] shall be exercised in good faith, with intelligent and informed care and honestly for the public weal.”
The US Supreme Court in Ex p Grossman, 267 US 87 (1925), explained the basis for pardons as “afford[ing] relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt.…. Our Constitution confers this discretion on the highest office in the nation in confidence that he will not abuse it.”
And in another case, Maru Ram AIR 1980 SC 2147, the Supreme Court insisted that although the power of the pardon is very wide, “it cannot run riot”. The court added that “the power to pardon …. cannot be a law unto itself but must be informed by the finer canons of constitutionalism.”
The sum total of the cases from across jurisdictions is that the president’s power to grant power is neither absolute nor beyond review by the court. Grounds on which the court may vitiate the exercise of the presidential pardon include political favouritism, vendetta or bad faith. Now, the only way that any action can be initiated is if the information is made public.
Importantly, in Epuru Sudhakar v. Government of Andhra Pradesh (2006) 8 SCC at 163, the Court said that executive clemency is not only for the benefit of the convict and that the President must keep in mind the effect of the decision on the victim and the victim’s family where the victim is dead, on society, and the precedent it sets for the future. The action by the President as well as the debate appears to have overlooked this fact.
President Granger’s concern for young people to be in school and not in jail is shared by all. As President, he needs to have his Government address whatever defects in the school system, and their social conditions, may have led to the offenders being in jail in the first place. What remains of concern to the Bar Association, and no doubt to sections of the population, is the number of the persons simultaneously pardoned, the absence of any information on the pardons, the apparent failure to consider victims, as well as the precedent such block pardons set.
