Presidential Pardon: A legal, historical and political perspective

The longer I live, the larger loom those . . . decisions about justice and mercy that I had to make as governor. They didn't make me feel godlike then: far from it; I felt just the opposite. It was an awesome, ultimate power over the lives of others that no person or government should have, or crave. And looking back over their names and files now, despite the horrible crimes and the catalogue of human weaknesses they comprise, I realize that each decision took something out of me that nothing--not family or work or hope for the future--has ever been able to replace." -- Edmund G. (Pat) Brown, Former Governor of California [i]

Origin and History
The concept of pardon is an artefact of older times, of an age where an omnipotent monarch possessed the power to punish or remit any punishment. It became a symbolic attribute of a god-like king having control over his subject's life and death. The linking of punishment and pardon are at least as old as the Code of Hammurabi, where the prescription of harsh penalties was balanced by rules to limit vengeance and specify mitigating circumstances [ii]. Royal authority to take life was matched by executive prerogatives to exercise mercy[iii]. In the democratic society of ancient Athens, the institution of clemency was not highly developed, largely because power rested with the people rather than with a monarch. [iv]

By the time the Athenian Civil War ended in 403 B.C., the procedural difficulties that attended obtaining clemency in Athens were immense. Before anyone could receive clemency, one had to comply with the process of adeia, which required that at least 6000 citizens support a petition for clemency in a secret poll
[v] Because the approval of this many people was difficult to obtain, clemency was seldom granted to individuals, at least those who were not celebrities. Thus, grants of clemency often hinged on popularity rather than concerns that a just result be reached. [vi]

In Roman times the Triumph gave the returning war hero the status of Dictator for a day, with a right both to slaughter war captives and to pardon them. Coronations and national holidays provided suitable occasions for monarchs to proclaim their generosity [vii] The Han emperors in china employed the practise of issuing general amnesties for procuring additional work force as emergency provisions or as soldiers. The French and the English later on were to adopt pardon as an executive practise, although not with an intention to provide a last resort for correcting human fallibility but more in deference to the absolute authority of a king. Not surprisingly, in France, the power to grant pardon vanished, albeit for a short period, with the French revolution of 1789, as it was deemed to be a heinous vestige of a repressive monarchy. Viewing Pardon biblically gives us the instance of the crucifixion of Jesus being preceded by the executive clemency of Barrabas.

Under oppressive, harsh and unreasonable penal mandates of an earlier era where punishments were inflicted without consideration being extended to the gravity of the offence, attitude and disposition of the accused and other ancillary points; pardoning prerogative gained much importance. However as arbitrary and undemocratic penal judicial systems give way to a modern, complex and scientific penal procedure, pardon must increasingly be wrested from the hands of a fanciful executive working under a political colour. Now, more than ever a growing need is being witnessed to assess the methodology and merits of such vast authoritative power vested in few, who are often not answerable.

Position in U.K
In U.K, the exercise of mercy by the Crown became firmly established in the middle ages, with the infringement of King's peace emerging as a basis for criminal liability. Since major felonies were always capital and pleas to self-defence had not developed, judicial procedure produced inflexible and unsatisfactory results. Use of the prerogative relieved those results.[viii] Further, the right to grant a pardon is exclusively vested in the Crown and is considered to be a privilege which cannot be claimed by any other person either by grant or prescription [ix]

However, in more recent times, this power has been delegated to colonial governors [x] and to Governor Generals [xi] Further, by such delegation the Sovereign does not entirely divest herself of the prerogative [xii]

 This particular relic of a monarchical era has successfully been incorporated into many modern democracies albeit subject to a few abuses of the power. Alternatively the judiciary in England has constantly monitored the unbridled, irrational grants of pardons and has provided a few checks and measures. As early as 1673, in Thomas Vs Sorrel[xiii] the maxim, non potest rex gratiam facere cum injuria et damno aliorum , that is to say, The king cannot confer a favour on one man to the injury and damage of others was applied. More so where any right or benefit is vested in a subject by statute or otherwise, the Crown, by a pardon, cannot affect it or take it away [xiv]

 Charles II used his royal pardoning power to prevent the impeachment of Danby, his prime-minister. Later on the parliament was to restrict the King's power by taking away his right to pardon an impeachment. By 1830 it was clear that the King had lost the rest of his pardoning power. In that year George IV ordered the Lord-Lieutenant to commute a death sentence, perhaps responding to a request from one of his mistresses [xv]

Peel, the Home Secretary, after consulting with Wellington, the Prime Minister, refused. After that it was the elected representatives of the people that managed the royal prerogative. Even then pardon was to be given only for legal reasons, such as an unsafe verdict [xvi]

Thus by the mid nineteenth century, the convention in England was moderated and made democratic. Lord Roskill in Council of Civil Service Unions v. Minister For Civil Service [xvii], held ,If the executive in pursuance of a statutory power does an act affecting the rights of a citizen, it is beyond question that in principle the manner of the exercise of that power may today be challenged. If the executive acting under a statutory power acts under a prerogative power… so as to affect the rights of a citizen, I am unable to see that there is any logical reason why the fact that the source of the power is prerogative and not statutory should today deprive the citizens of that right of challenge to the manner of its exercise….To talk of the act as an act of the sovereign speaks of anarchism of the past centuries. Lord Diplock, suggested that the exercise of prerogative power can be subjected to judicial review on the grounds of illegality or procedural impropriety [xviii]

Lewis in his book, Judicial remedies in public law(1992) p 21, states: In principle a failure to consider exercising the power to grant a pardon should be reviewable, at least if an individual can demonstrate that there is some reason why the Home Secretary should consider the case. It is also difficult to see why a decision to refuse a pardon should not also be reviewable in appropriate circumstances, for example, where the allegation is that there has been a failure to act in accordance with any relevant material or a failure to act in accordance with any relevant guidelines, or if there is an error of law as to the element of the offence for which the pardon was sought

Position in U.S
In the United States, the pardon power for federal crimes is granted to the President of the United States under Article II, Section 2 of the United States Constitution states that the President "shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."
Looking at American background, Alexander Hamilton, a member to the constitutional convention of 1787 opined in favour of the pardoning power being vested in an individual than a body or an institution, by stating, Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed…one man appears to be a more eligible dispenser of mercy of the government than a body of men. Little could Hamilton imagine the controversy his benign prerogative was to find itself mired in times ahead. Jurists and legal commentators, in America have consistently recorded their discontent against the unchecked use of presidential pardoning power.

For instance, Bill Clinton's various pardon controversies were referred collectively as pardongate by the media [xix], among which stands the case of Marc Rich, a fugitive who had fled the U.S. during his prosecution and was residing in Switzerland. Rich owed $48 million in taxes and was charged with 51 counts of tax fraud, was pardoned of tax evasion after clemency pleas from Israeli prime minister Ehud Barak, among many other international luminaries…According to Paul Volcker's independent investigation of Iraqi Oil-for-Food kickback schemes, Marc Rich was a middleman for several suspect Iraqi oil deals involving over 4 million barrels of oil. Critics complained that Denise Rich, his former wife, had made substantial donations to both the Clinton library and to Mrs. Clinton's senate campaign. [xx].

Subsequently Clinton was also probed for the grant of pardon to his half brother, Roger Clinton, caught for cocaine possession. He also issued 140 pardons as well as several commutations on his last day of office, January 20, 2001[xxi]. Contrasting him, George Bush refrained from even an economical use of Pardon. His over all pardon percentage remained as low as 9.8% and his commutations were limited to 0.012%[xxii]. He went on to commute sentence of Lewis "Scooter" Libby - Convicted of perjury, obstruction of justice, and making false statements to investigators in connection with the CIA leak scandal involving members of President George W. Bush's administration On September 8, 1974 President Gerald Ford issued a proclamation granting a full, free, and absolute pardon unto Richard Nixon for all offences against the United States [xxiii]. A committee was set up to inquire and investigate the charges against him, calling for an impeachment for his acts done during the time he held office.

One jurist in particular mourns the abuse in 59 Am. Jur. 2d Pardon and Parole § 44 (2002):"Any executive may grant a pardon for good reasons or bad, or for any reason at all, and the act is final and irrevocable. Even for the grossest abuse of this discretionary power the law affords no remedy; that the courts have no concern with the reasons for the pardon. The constitution clothes the executive with the power to grant pardons, and this power is beyond the control, or even the legitimate criticism, of the judiciary. Whatever may have been the reasons for granting a pardon, the courts cannot decline to give it effect, if it is valid upon its face, and no court has the power to review grounds or motives for the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the governor in the exercise of the pardoning power would be a manifest usurpation of authority, no matter how flagrant the breach of duty upon the part of the executive."

However this is not to say that the institution of executive pardon has only been employed for political viability. Pardons have also been offered to restore tranquility and peace, for example, the proclamation of pardon issued by George Washington to the perpetrators of the Whiskey rebellion who had not yet been indicted or a blanket pardon issued by Jimmy carter to draft dodgers of the Vietnam war. Interestingly, Lincoln made extensive use of his pardoning prerogative, once sending a rider with a handwritten order, calling for a halt to a military execution. It stated: 'Colonel Mulligan – if you haven't shot Barney D. –yet – don't. A. Lincoln' [xxiv]

It was Justice Oliver Wendell Holmes who encapsulated with brilliant articulation the nature a pardon must possess, in Biddle V/s Perovich: [xxv] A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of our constitutional scheme. When granted it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment fixed

In ex parte Garland [xxvi], Justice Fields opined on the effect of a pardon, although his was not an unanimous opinion. He stated, A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eyes of law, the offender is as innocent as if he had never committed the offence.

Position in India
In India, Article 72 of the constitution of India empowers the President of India to grant pardon, reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence. However, the president cannot act as per his own whims and fancies and in this process he is to be guided by the Home Minister and the council of ministers. The power to pardon rests on the advice tendered by the executive to the president, who subject to the provisions of Article 74(1) must act in accordance with such advice. More so it has been sufficiently established in Maru Ram v. Union of India [xxvii] and Kehar Singh v. Union of India [xxviii] that the exercise of the executive prerogative is subject to a judicial review. Under Article 161, a similar power to grant pardon has been granted to state governors.

In Kehar Singh v. Union of India, Pathak, CJ observed The power of pardon is part of a constitutional scheme and we have no doubt that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the head of the state and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context. The court also justifies the existence of a Pardon, by acknowledging the fallibility of human judgment being undeniable even in a supremely legally trained mind and therefore any such errors can be remedied by entrusting power to a higher authority, which shall scrutinize the validity of the threatened denial of life or the continued denial of personal liberty.

The Law Commission [xxix] also stressed on the need for the existence of an executive Pardoning Power citing the following as reasons (although not exhaustive)
1. Facts not placed before the court
2. Facts placed before the court but not in a proper manner
3. Facts disclosed after the passing of the sentence
4. Events which have developed after the passing of the sentence.

The law commission stated that there is a plethora of other reasons which do not lend themselves to codification and therefore the law commission insisted on retaining the Scope of the pardon prerogative.

In Maru ram v. Union of India, the scope of Article 72 was examined. The court opined that faith was to be instilled in the vision of the founding fathers and for such a task it is necessary that rules must be drafted, laying down the guidelines for the exercise of such vast prerogative. The court stated that the proportional rise in power should be accompanied with a proportional rise in responsibility and that any such power must be protected from the capacity of being abused. The Honourable judges provided that the pardoning power can be subject to a review where an executive decision has been made on altogether irrational, arbitrary, unreasonable or mala fide grounds such as discrimination on the basis of religion, caste, colour or political loyalty.

Pathak C.J in Kehar Singh states, by means of citing Ex parte William wells [xxx], that the prerogative power can be subjected to judicial review when the circumstances of any case disclose such uncertainties as made it doubtful if there should have been a conviction of the criminal, or when they are such to show that there might be a mitigation of the punishment without lessening the obligation of vindicatory justice. However unlike Maru Ram the court refrained from laying guidelines stating It seems to us that there are sufficient indications in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law and specific guidelines need not be spelled out.

The court also appraised the position and functionality of the court, stating that it is within the capacity of the judiciary to address any question relating to any act of the executive-whether it falls within the boundaries of the constitutional power so conferred or whether there is an omission of performance of the act or whether there has been flawed understanding of the scope of the power.

In State of Rajasthan v. Union of India [xxxi], it was held that whenever a question arises whether an authority under the constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the court. Indeed, it would be its constitutional obligation to do so. The constitution entrusts the court with the responsibility to interpret the constitution and determine the validity or constitutionality of any executive action.

However it is also to be understood that there is no inherent right in the condemned person to insist on an oral hearing. The manner of consideration of the petition lies within the discretion of the president and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. Mr.Ram Jethmalani, the counsel on behalf of Kehar singh, had requested an oral presentation before the president which was subsequently denied by the Secretary to the president stating that it was not in accordance with the well established practise in respect of consideration of mercy petition.

Recently the case for granting pardon to Mohammed Afzal, convicted of conspiracy in the December 2001 attack on the Indian Parliament has come to the fore. He was sentenced to death by the Supreme Court of India in 2004. The sentence was to be carried out on 20 October 2006. The sentence is now stayed. Political groups from Kashmir are insisting on a pardon for the sake of maintenance of the peace process in the valley. Various human rights group are also alleging denial of a fair and free trial to Mohd. Afzal. In particular, Arundhati roy, in an scathing article [xxxii] has castigated the trial and deemed it as one denying natural justice.

Earlier the mercy petition on behalf of Dhanonjoy Chatterjee, convicted of rape and murder and sentenced to death, was denied by the president in spite of widely staged and much publicized efforts of Human rights and Anti-capital punishment groups.

Conclusion
Executive pardon since the ages has undergone massive change, and so has unbridled executive power. It only bodes well for a democratic nation that the ambit of a free and fair judiciary claims victory over a politically motivated executive. However, propagating absolute denial of clemency to the executive will not lend itself to better circumstances as an already overburdened judiciary tries to deal with the immense backlog of disputes. An executive seeking to reach a just end for the accused without any other considerations and a strict and ever watchful judiciary, looking over the exercise of such vast amplitude of power can

Endnotes
1. E. Brown & D. Adler, Public Justice, Private Mercy 163 (1989) (quoting Pat Brown).
2. King, L (translator, 2000), Hammurabis Code of Laws, http://eqwc.evansville.edu/anthology/hammurabi.htm
[iii] Rolph, C. (1978). The Queen's pardon, London, Cassell.
[iv] 3 U.S. Dep't of Justice, The Attorney General's Survey of Release Procedures 150-53 (1939)
[v] See D. MacDowell, The Law in Classical Athens 258-59 (1978);
[vi] Daniel. T.Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King [69 Tex.L.Rev. 569 (1991)
[vii] Rolph, C. (1978). The Queen's pardon, London, Cassell
[viii] R v. Secretary of State,ex P Bentley 1993 4 All ER 442
[ix] See 3 Co Inst 233
[x] See Commonwealth, vol.6,para 1040,note 2
[xi] See Commonwealth, vol. 6,para 824
[xii] See the speaker's ruling of 10th march 1947 (434 H. of C. Official report(5th series)
[xiii](1673) Vaugh 330 at 343
[xiv] Biggins case (1599) 5 Co Rep 50 a,b
[xv] Rolph, C. (1978). The Queen's pardon, London, Cassell.
[xvi] Ibid
[xvii] (1984) 3 All ER 935 at 936
[xviii] (1984) 3 All ER 935 at 951
[xix] Reaves, Jessica, "Pardongate Play-by-Play": TIME.com's quick 'n' constantly updated account of the Clinton pardon scandals, TIME
[xx] Neisloss, Liz, "Probe: $1.8B diverted to Hussein regime", CNN, 2005-10-27
[xxi] Clinton Pardon's List", Associated Press via The Washington Post, 2001-01-20
[xxii] The Fall of Presidential Pardon. http://sentencing.typepad.com/sentencing_law_and_policy/2009/04/the-fall-of-the-presidential-pardon.html
[xxiii] President Gerald R. Ford's Proclamation 4311, Granting a Pardon to Richard Nixon
[xxiv] David Tait, http://www.canberra.edu.au/ncf/events/pardonsperspective.pdf
[xxv] 274 U.S 480,486(1927)
[xxvi] 71 U.S. (4 Wall.)333,381 (1867)
[xxvii] AIR 1980 SC 2147
[xxviii] AIR 1989 SC 653
[xxix] Report on criminal punishment, 317-18 (1967)
[xxx] (1854-1857) 15 law ed 421
[xxxi] 1978 1 SCR 1 at pp 80-81
[xxxii] http://www.guardian.co.uk/world/2006/dec/15/india.kashmir

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