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August 08, 2007
Some Thoughts on the Vexed Question of Justice
And the Constitutional Right of Pardon
By Tesfaye Habisso
“To shut up a man in prison longer than necessary
is not only bad for the man himself, but also it is a use-less piece of cruelty, economically wasteful and a
source of loss to the community. ”[As quoted in Burghess, J. C. in 1897, U.B.R. 330/334]
The recent presidential pardon brokered by an ad hoc committee of national elders and granted to the convicted and sentenced Coalition for Unity and Democracy (CUD) political leaders, freeing them from life imprisonment and also reinstating their civil rights, has not provoked much public discussion and academic debate as expected but limited only to a few government lawyers and the state media, some weekly private newspapers and Zami Productions private broadcasting media. Some professionals—lawyers and academics as well as pundits here at home and abroad--have been heard alleging that the presidential pardon would “undermine and weaken the rule of law”, “decrease public faith in government,”, or “disrupt the day-to-day workings of the entire judicial system and complicate the work of federal prosecutors and judges”, etc. Nevertheless, as it is a maiden presidential pardon granted to criminal offenders since the coming into force of the FDRE Constitution in 1994, it has undoubtedly created a spark of hope and feelings of elation amongst the citizenry at home and abroad, a sort of a harbinger of more pleasant things to happen in the times to come. It is indeed this feeling of optimism that also provoked me to put pen to paper regarding this phenomenal and memorable process of forgiveness gaining ground in our country today and delve into the vexed question of justice on the one hand and the right of pardon as a political tool necessary for the sake of healing wounds and promoting reconciliation and public welfare, on the other.
Many academicians, legal experts and political scientists point out that every modern state, whether governed by a popularly elected government or a monarchy, in its constitution or laws provides for, and must provide for if not already incorporated there, a power to grant pardon or remission of sentence. This philosophy is well enunciated, for
example, in the American Jurisprudence which states as follows: “Every civilized country recognizes, and has therefore provided
for the pardon power to be exercised as an act of grace and humanity
in proper cases. Without such a power of clemency to be exercised
by some department or functionary of a government, a country would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.” [See 59 American Jurisprudence 2d, p.5].
Article II, Section 2, Clause 1 of the United States Constitution, for instance, reads in relevant part, “The President…shall have Power to grant Reprieves and Pardon for Offenses against the United States, except in cases of Impeachment.” [Mark Strasser, Professor of Law, Capital University Law School].
In a similar fashion, Article 71, sub-Article 7 of the FDRE Constitution 1994 confers the pardon power on the President, and states that “ he shall, in accordance with conditions an procedures established by law, grant pardon.”[Art.71/7]. However, according to Article 28 of the Constitution, this power of pardon does not extend to “crimes against humanity, so defined by international agreements, ratified by Ethiopia and by other laws of Ethiopia, such as genocide, summary executions, forcible disappearances or torture; such offences may not be commuted by amnesty or pardon of the legislature or any other state
organ. ”[Art. 28/1]. The Head of State or the President, upon recommendation by the Board of Pardons, can only commute a death sentence to life imprisonment for crimes against humanity mentioned here above [Art.28/2]. The FDRE Constitution, unlike the U.S. Constitution, does not make any distinction between Reprieve and Pardon for offences against the State (“reprieve” is the temporary postponement of the execution of a criminal sentence, especially a death sentence). Be this as it may, I believe, similar provisions are incorporated in the Constitutions of the nine Regional States constituting the Federal Democratic Republic of Ethiopia, conferring similar pardon powers to the respective Presidents of the States. The Criminal Code of the FDRE, Proclamation No. 414/2004 clearly lays down the conditions of pardon (Art. 229), amnesty (Art. 230), and provides for civil reparation and costs (Art. 231), and further elaborates on how and on what conditions the acts of pardon and amnesty are enforced. Article 774 of the Criminal Code on Pardon and Amnesty states that “penalties imposed in respect of petty offences may be cancelled by a pardon or an amnesty on the usual conditions laid down in the Criminal Code (Arts. 229-231). Further, Art.775 of the Code on Reinstatement states: “ An offender who is sentenced to a penalty shall as of right be reinstated after one year has elapsed since the penalty was undergone in whole or in part or barred by limitation, or remitted by pardon.”
Some commentators argue that the pardon power is only appropriately used to rectify mistakes, e.g., to free someone wrongly convicted or to reduce a clearly disproportionate sentence. Others call for reform of the presidential pardon power, especially after allegations of abuse involving cover-ups of official wrong-doing or rewards for financial contributions have been made. The argument in this regard is that the pardon power was neither intended to help political coffers nor to prevent individuals in office from being brought to justice. On the other hand, numerous other scholars strongly argue that the pardon power may be used to achieve a variety of state goals such as promoting peace and healing in the country or inducing witnesses to testify so that criminal offenders might be brought to justice. Mark Strasser contends that “…without more consensus about which uses are appropriate and which are not, it seems clear that the pardon power neither will nor should be limited.”
Definitions of concepts and terms relevant to presidential pardons Before going any further, I think, it is essential to grasp the meanings of the terms and concepts that constitute the broad issue of pardon. Defining pardon, or the act of forgiveness, is almost as problematic as determining its role in reconciliation and healing the wounds inflicted by the parties in conflict.
Based on the definitions of concepts and legal terms relevant to presidential pardons, excerpted from WIKIPEDIA: The Free Encyclopaedia and from Black’s Law dictionary, 7th Edition (1999), the following explanations are given:
A pardon is the action of an executive official of the government that mitigates or sets aside the punishment for a crime. The granting of a pardon to a person who has committed a crime or who has been convicted of a crime is an act of clemency, which forgives the wrongdoer and restores the person’s civil rights. It extends to every offence known to the law and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. The granting of an unconditional pardon fully restores an individual’s civil rights forfeited upon conviction of a crime and restores the person’s innocence as though he or she had never committed a crime. This means that a recipient of a pardon may regain the right to vote and to hold various positions of public trust.
A conditional pardon imposes a condition on the offender before it becomes effective. Typically, this means a commutation of a sentence. Unless the pardon expressly states that it is issued because of a determination that the recipient was innocent, a pardon does not imply innocence. It is merely a forgiveness of the offence. It is generally assumed that acceptance of a pardon is an implicit acknowledgment of guilt, for one cannot be pardoned unless one has committed an offence.
The president also has the power to grant “Reprieves”. A reprieve differs from a pardon in that it establishes a temporary delay in the enforcement of the sentence imposed by the court, without changing the sentence or forgiving the crime. A reprieve might be issued for the execution of a prisoner to give time to the prisoner to prove his or her innocence.
A related power is the power to grant to “amnesty”, which is also implicit in the pardon power. Amnesty is applied to whole classes or communities, instead of individuals. The power to issue an amnesty and the effect of an amnesty are the same as those for a pardon.
Black’s Law Dictionary, 7th edition (1999) defines the following legal terms and concepts relevant to presidential pardons:
· PARDON: The action of an executive official of the government that mitigates or sets aside the punishment for a crime; the act of officially nullifying punishment or other legal consequences of a crime.
*Absolute Pardon: A pardon that releases the wrongdoer from punishment and restores the offender’s civil rights without qualification. Also termed full pardon; unconditional pardon.
*Conditional Pardon: A pardon that does not become effective until the wrongdoer satisfied a prerequisite or that will be revoked upon the occurrence of some specified act.
*General Pardon. See Amnesty
*Partial Pardon: A pardon that exonerates the offender from some but not all of the punishment or legal consequences of a crime.
+AMNESTY: A pardon extended by the government to a group or class or persons, usually for a political offence; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not been convicted…Unlike an ordinary pardon, amnesty is usually addressed to crimes against state sovereignty—that is, to political offences with respect to which forgiveness is deemed more expedient for the pubic welfare than prosecution and punishment. Amnesty is usually general, addressed to classes or even communities. Also termed general pardon.
*CLEMENCY: The granting of a pardon to a person who has committed a crime or who has been convicted of a crime, which forgives the wrongdoer and restores the person’s civil rights. Also termed MERCY or Leniency.
*COMMUTATION: The executive’s substitution in a particular case of a less severe punishment for a more severe one that has already been judicially imposed on the defendant.
*REPRIEVE: Temporary postponement of the execution of a criminal sentence, especially a death sentence.
The Exercise of the Pardon Power versus Justice: Arguments For and Against the Right of Pardon
In politics, the pardon granted the culprit (who sometimes is but a vanquished adversary) produces the happiest effect in favour of the power granting it; it impresses the minds of the people with the spectacle of power and greatness, and at the same time disarms the parties. “Monarchs”, says Montesquieu, “have so much to gain by clemency, they derive so much glory from it, that in almost every instance it is for them a piece of good fortune to have an opportunity to exercise clemency…How many examples are there, on the contrary, of powers pursued to death by the cry of blood uselessly spilt, and which have perished for not having pardoned in time.” But when should we punish and when pardon? Montesquieu proposed that question to himself which it is not an easy task to solve. “Clemency”, says he, “should not degenerate into weakness, nor should it bring the prince [the president] who exercises it into contempt. Clemency, it is true, may have its dangers; the latter produces terror, which offers but an unsteady basis to power….and provoke retaliation.”
It is settled law that the pardon power is to be exercised in accordance with ministerial advice, or in the case of Ethiopia, upon recommendation by a Board of Pardon chaired by the Minister of Justice (Procl. No. 395/2004), and not by exercise of the President’s individual discretion. The rationale of the pardon power has been felicitously expressed by the former Justice Holmes of the U.S.A Supreme Court in the case of Biddle v. Petrovich, in the following words:
“A pardon in our days is not a private act of grace from an individual
happening to possess power. It is a part of the constitutional scheme. When granted, it is the
determination of the ultimate authority that The public welfare will be better served by inflicting less than whatthe judgment fixed.” [71 L. Ed. 1161 at 1163].
The classic exposition of the law relating to pardon is to be found in Ex parte Philip Grossman where Chief Justice Taft stated:
“Executive clemency exists to afford relief from undue harshness
or evident mistake in the operation or the 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. To afford a remedy, it has always been thought essential in popular governments, as well as
in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments.”
[69 L. ED. 527]
It must be realized that the exercise of the power of pardon does not mandate the expungment or destruction of the record of the offence, that is, the judgment of the court. The act of pardon under the Constitution operates in a wholly different plane from that in which the court acts. It is the exercise of constitutional power. The judicial power and the executive power over sentences are distinct. This ostensible incongruity is well explained by Sutherland J. in United States v. Benz in these words:
“The judicial power and the executive power over sentences are
readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short asentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.” [75 L. Ed. 354 and 358]
The critical questions that arise at this juncture are: What are the legitimate and relevant considerations for exercise of the power of pardon in countries such as ours where the death penalty is still on the statute book and no challenges to its unconstitutionality have ever been heard of as yet? According to literature on presidential pardon power, some of the illustrative considerations are: a) interest of society and the convict(s); b) the effect on the family members of the victim(s) and their sense of indignation and injustice; c) the period of imprisonment undergone and the remaining period; d) seriousness and relative recentness of the offence; e) when there is a “scintilla of doubt” about the convict’s guilt; f) the age of the prisoner and the reasonable expectations of his/her longevity; g) the health of the prisoner especially any serious illness from which he/she may be suffering; h) good prison record; I) post-conviction conduct, character and reputation; j) remorse and atonement; k) deference of public opinion [Indian Express].
The aforementioned supportive arguments notwithstanding, the utility of the right of pardon has been questioned by some publicists, as for instance, Beccaria, Bentham and even Rousseau, who have contested the necessity of its intervention. Beccaria desired to introduce clemency into the law, but not into the execution of its judgments. He thought the moderation of penalties and the “perfection of the law” would render pardons superfluous. “The right to remit the penalty imposed on the culprit,” he said, “is a tacit disapprobation of the laws.” This inflexible rule, which attributes the same weight and measure to all acts of the same nature, although in the infinite variety of human affairs they differ considerably one from the other, and never have the same moral value, has been condemned by experience, which has rejected the system of the fixity of penalties.” J.J. Rousseau, although less absolute than Beccaria, reached almost the same conclusions. “The right of pardon,” says Rousseau, “or of exempting a culprit from the penalty declared by the law and pronounced by the judge, belongs only to one who is above the judge and the law, that is, to the sovereign; moreover, the right of the sovereign to exercise the pardoning power is not quite clear, and the cases in which that power should be exercised are very rare. In a well-governed state there are but few punishments, not because pardon is very frequent, but because there are few criminals; the multitude of crimes insures their impunity when the state is in a condition of decay. Frequent cases of pardon indicate that crimes will soon have no need of it.”
More recently than Rousseau’s time, clemency in the execution of penalties found new adversaries. Mr. Livingston, an American jurist, opposed it in principle, and proposed at least to restrict its application to certain cases. “The pardoning power,” said he, “should not be exercised except in cases in which the innocence of the prisoner is discovered after he has been condemned, or in case of his sincere and complete reformation.” These few words give utterance to several errors: first, if a person condemned is found to be innocent after his condemnation, there can be no such thing as pardon; the judicial error should be corrected and the sentence of condemnation annulled. Then, it is not correct to say that the reformation of the person condemned and his moral amendment should of themselves constitute a motive for the intervention of the pardoning power. Mr. Livingston, whom we have cited would, without doubt, have expressed himself differently had he borne political crimes and offences in mind. We do not deny that repentance and the return to moral sentiments may, in the case of ordinary crimes, be made a condition of pardon. The thief and the murderer should not be allowed to re-enter society without giving it a pledge for their moral behaviour. But political crimes and offences have a special character: they do not manifest in their author the same degree of perversity as common crimes, and conscience does not express the same reprobation for them. This class of offences, in most cases, constitutes just as serious a violation of moral law as ordinary offences, but not of the same law. Common crimes are crimes everywhere; political acts are crimes only in a variable and, in a sense, conditional manner. It might be said that circumstances make and unmake them. “The immorality of political offences,” says Guizot, “is neither as clear nor as immutable as that of ordinary crimes; it is always crossed or obscured by the vicissitudes of human affairs; it varies with the time, with events and with the rights and merits of power.”
Public conscience is subject to reaction in favour of persons condemned for political offences; it cannot be subject in favour of persons condemned for ordinary crimes. Public conscience amnesties the former; it pardons the latter, but it never amnesties them, it forgives but does not forget them. “The vexed question,” argues the former attorney general of India, “is whether the power of pardon can be exercised to appease popular sentiment or public opinion and thereby yielding to it.” According to one Law Commission Report, “ it has occasionally been felt right to commute the sentence in deference to a widely spread or strong local expression of public opinion, on the ground that it would do more harm than good to carry out the sentence if the result was to arouse sympathy for the offender and hostility to the law,” says he. [“Before We Tender Clemency”, The Indian Express, October 6, 2006]
This view has serious implications. Public opinion and especially its local expression are fleeting and fluctuating and can be manipulated and aroused by injecting into them strong doses of emotional and political elements. There can be, on the other hand, equally strong contrary public opinion. Grant of pardon based solely on the ground that a certain ethnic, religious or political group or region of a country will go up in flames if the convict (s) is/are executed smacks of pressure and is almost tantamount to blackmail. If this argument is accepted, then, persons found guilty after a fair trial of ghastly murders in Abule, Ogaden Region of Ethiopia or elsewhere in the country should not be executed. Will the voices asking for pardon for the OLF and ONLF incarcerated fighters also plead passionately for grant of pardon to the convicted and sentenced former Derg officials and functionaries? Or, will there be double standards in the matter?
How, then, can we subordinate the right of pardon in matters political to conditions of reformation and private morality, as has been proposed by Livingston? According to one source, “what makes repression necessary in cases of this kind is not the immorality and perversity of the person committing the offence, but political causes which must be subjected in their action to the general principles of justice and of right; the opportuneness, sometimes even the necessity, of pardon, depends on the same causes. Circumstances which change, occasions which pass away, passions which become abated, parties which are dissolved: all of these contribute toward diminishing the importance of a person condemned for a political offence.”
[Theorie du Code Penal, by M.M. Chauveau et Faustin Helie]. Whatever the case, many commentators contend that clemency must be exercised on definite principles. “It is submitted”, the American Jurisprudence states, “that though the circumstances and the criteria for exercise or non-exercise of pardon power may be of infinite variety one principle is well-settled and admits of no doubt or debate, namely that the power of pardon should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is a blow at law and order and is an additional hardship upon society in its irrepressible conflict with crime and criminals.” [See 59 American Jurisprudence 2d, p. 11, para. 13] Furthermore, as the former attorney general of India strongly argues,
“ justice and the rule of law must not be sacrificed at the altar of sheer expediency and speculative political considerations and likely fallout. A full pardon having regard to the enormity of the crime and the killing of security personnel who were patriotically performing their duty would set a pernicious precedent, outrage the sense of injustice in the minds of the victims as well as their families and open a veritable Pandora’s box. Moreover, the Rule of Law, which is a basic feature of our Constitution would be the foremost casualty and thus should be avoided at all costs.”
The final remarks of the former Attorney General of India regarding “rule of law” are quite interesting and deserve some comments, I believe. The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. That much is common ground. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality (before the law or otherwise), human rights of any kind or respect for persons or for the dignity of man. A non-democratic legal system, based on the denial of human rights, on extensive poverty, sexual inequalities and religious persecution, etc., may, in principle, conform to the requirements of the rule of law better than any of the legal systems of the more enlightened Western democracies. This does not mean that it will be an immeasurably worse legal system, but it will excel in one respect: in its conformity to the rule of law. Exercising the right of pardon based on definite principles and motives of healing the wounds suffered, promoting reconciliation and public welfare can/will never undermine or weaken the rule of law. Limited or individual acts of clemency will never, ever disrupt the day-to-day workings of the judicial system. Pardon or the act of forgiveness is a powerful transformation in which parties release feelings of resentment and bitterness towards the so-called enemy in an effort to focus on the future. Therefore, as Emile Chedieu put it very succinctly, “ If we cannot help going to extremes it is better to sin by an excess of clemency. It is not certain that this is not the better policy, even as far as duration is concerned; and posterity which admires the victor, gives its love to the indulgent.” [ Emile Chedieu,
1899]
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