In seven months, President David Granger has pardoned approximately fifty-one convicted criminals. This must be a world record by any standards. In twelve years as President, Mr Bharrat Jagdeo pardoned one. This individual was not convicted but had spent nearly five years on remand. In three years, President Donald Ramotar pardoned one convicted of murder. The convict had spent over twenty years in prison. President Ramotar was roundly criticized for so doing. He subsequently admitted that had he been apprised of certain facts, he may not have granted the pardon.
In President Granger’s case, there are marked differences. Pardon appears to be part of a presidential policy formulated and executed solely by the President. The only information with which the public is fed by the President himself is that “the persons are convicted of non-violent crimes… they should be in schools and not prison … and they should be at home for Christmas with their family.” All of this, determined solely by our benign and benevolent President. Not a word of consultation; not with the victims; not with the judiciary; not with civil society; not with a single member of the public. The President promises that this will be an ongoing exercise. Yet, in his manifesto, he promised accountable and consultative governance and committed his government to Article 13 of the Constitution, which provides: “the principal objective of the political system of the State is to establish an inclusionary democracy by providing increasing opportunities for the participation of citizens, and their organizations in the management and decision-making processes of the State, with particular emphasis on those areas of decision-making that directly affect their well-being.”
The power to grant pardons to persons convicted of criminal offences owes its genesis to the royal prerogative of mercy. It was first codified in the Constitution of the United States and, later on in other constitutions. It is reflected in Article 188 of the Guyana Constitution. The layman may argue that the exercise of a prerogative power requires no consultation and it is not reviewable by the court and, therefore, it is absolute. However, any first year public law student knows that any power, regardless of how untrammelled and absolute it may appear, ex facie, is circumscribed by law and the court will strike down the exercise of such power if it is done unreasonably, capriciously, discriminatorily, in violation of the rules of natural justice, in bad faith and procedurally improperly. Lord Denning in his text, The Discipline of Law, writes: “the prerogative is a discretionary power exercisable by the executive government for the public good … the law does not interfere with the proper exercise of the discretion by the executive: but it sets limits … and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our Constitution… if that discretionary power be abused to the public detriment such prerogative is exerted in an unconstitutional manner…”
I submit that the exercise of the presidential power of pardon is subject to the same principles adumbrated by Lord Denning. After all, it is from thence that we have inherited it. More particularly, Article 188 (2) of the Constitution mandates a procedure to be followed by the president when he exercises this power. It provides: “… the powers of the President under the preceding paragraph [that is where the power to pardon is conferred] shall be exercised by him or her after consultation with such Minister as may from time to time be designated by him or her”. No one knows with which Minister the President consulted in satisfaction of this requirement. More significantly, if this power is to be exercised for the “public good”, is it proper for the President to solely determine what the “public good” is with no input from the public? It cannot be. Can pardoning criminals inure to the “public good” in a society where crime is wreaking havoc? I think not, but the public should have a say.
It is because of the undemocratic and innately arbitrarily nature of this power that it has fallen into disuse in the United Kingdom, the very jurisdiction in which it was born. In the US, where this power is more frequently exercised, there are known principles and procedures governing it. It is granted when the individual has demonstrated that he has fulfilled his debt to society or is otherwise considered to be deserving. Procedurally, a person seeking pardon must apply for it to an office called the Office of Pardon, specifically, established for this purpose. The application must be supported by recommendations and there are a plethora of requirements which must be satisfied before the person is qualified to be considered for pardon. None of this is extant in Guyana. No one knows how and by what criteria these persons are selected. The entire process smacks of caprice and arrogance.
Even in the US, in the face of all the procedural safeguards outlined above, the concept of presidential pardon remains a matter of tremendous disquiet. In 1939, the Attorney General of the United States was forced to put this issue to a public survey. Under the heading “Why Pardon” the issue was succinctly put thus: “a man has been adjudged guilty of crime. He was given a fair trial. He had full notice of the charge against him and an opportunity to present his defence. He had the benefit of counsel. Everything that could be said or done in his defence was said and done. A jury of 12 men unanimously found him guilty beyond all reasonable doubt. He had opportunity to ask for a new trial if there was any reason to believe the verdict was not sustained by the evidence. He had a right of appeal to a higher court. If he felt his Federal constitutional rights had been impaired he had the right to appeal to the Supreme Court of the United States. Why should he now be allowed to appeal from this judgment to the executive, by asking for a pardon? Why should the executive have the power to set at naught any judgment of the courts, no matter how fairly and painstakingly arrived at?” These are pertinent questions, mutatis mutandis, that President Granger must answer.
This brings me to the issue of separation of powers, a foundational concept upon which our constitutional structure rests. Its important tenets were eloquently captured in the judgment of Justice Saunders in Benjamin et al v Minister of Information et al (1997, Anguilla High Court): “… our democracy rests on three fundamental pillars, the legislative, the executive and the judicial. All must keep within the bounds of the constitution … for our democracy to operate effectively, it has been said that it is necessary that a certain comity should exist between the three branches. Each should respect the role and function of the other. The court is subject to and must enforce laws passed by parliament that are intra vires the Constitution. The executive should respect and obey the decisions and accept the intimations of the court. If this comity does not exist, then the wheels of democracy would not turn smoothly. A jarring and dangerous note will resonate from them.”
I submit that the manner in which President Granger exercises the power of pardon also flies in the face of the doctrine of separation of powers as articulated by Justice Saunders. Billions of tax dollars are spent annually to finance the criminal justice system. Our law enforcement officers risk their lives in arresting persons suspected of committing crimes. Victims and witnesses dedicate their time and endure grave trauma in facing these alleged perpetrators in the Courts in order to give evidence. Prosecutors toil against great odds to accumulate and present credible evidence. Judicial officers spend thousands of man hours tediously adducing evidence.
If and only if, the legal requirements are met, a conviction follows. When all of this is accomplished, our President, like an ethereal paragon, waves his presidential rod and sets them free. He does this not, occasionally, but apparently, as a matter of policy at periodic intervals. He acts in accordance with no known principles. He follows no recognized procedure. But he overturns decisions of the judiciary rendered in accordance with the law of the land.
This must be the antithesis of democratic and accountable government.
Mohabir Anil Nandlall, MP