Ok class, listen up. A short lesson on Presidential pardons seems to be called for. The lesson is required because seldom has so much nonsense been spoken by so many different people with different political convictions, than recently on the granting of Presidential pardons.
First the President claimed wrongly that Schabir Shaik had not applied for a pardon, then his office claimed that a decision by the President to pardon anyone could not be reviewed. And today the DA’s James Selfe said it was currently not clear whether a Presidential pardon could be taken to court for review.
The DA has proposed a private members Bill that would require the Minister of Justice to make a written recommendation to the President on whether to pardon an applicant and would require the President “to take into account” the recommendation before granting a pardon. The Bill would require the minister to have regard to a list of guidelines before making a recommendation to the President. These guidelines are currently non-biding guidelines used by the ministry of justice to process pardons and to advise the President and include:
* The age of the offender at the time of the commission of the offence;
* Whether a reasonable period has lapsed since the conviction;
* Circumstances surrounding the commission of the offence;
* The nature and seriousness of the offence;
* Personal circumstances of the offender at time of application;
* The interest of the State and the community; and
* The interests of the victim, if any.
Currently the President is not bound by these guidelines or by the recommendation of the Minister of Justice and a decision to pardon anyone is his alone. Both the Presidency and the DA seems blissfully unaware of the existence of a Constitutional Court judgment in the case of President of the Republic of South Africa v Hugo in which it confirmed that any decision by the President to pardon anyone had to conform to the Constitution and could be reviewed by a court.
If Mr Selfe had taken the time to have a quick look at this case, he would have realized that his draft Bill, if passed, might well run into serious constitutional difficulties. Writing about an almost identical provision in the interim Constitution, Justice Goldstone stated that:
The powers of the President under section 82(1) are expressed in wide and unqualified terms. Unlike most other presidential powers they can be exercised without the concurrence of the Cabinet…. his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution.
A law that would require the President to consult the Minister of Justice and to take into account a recommendation of the Minister will either be utterly irrelevant and useless (if the President could ignore the guidelines or the recommendations of the Minister altogether) or it would fetter the discretion of the President as it would force him to make a decision based on the guidelines set out in the Bill and the recommendations of the Minister made in terms of the guidelines.
In the latter case – which seems a more likely reading as the Bill would require the President to apply his mind to the recommendations and if he failed to do so a court would be able to set aside his decision – the provisions of the Bill would probably not pass constitutional muster. An ordinary law cannot limit the almost unfettered powers granted to the President by the Constitution. This is an inevitable consequence of the supremacy of the Constitution. Mr Selfe seems sadly unaware of this rather obvious fact.
This does not mean that where the President pardons an individual, that decision cannot be reviewed by a Court. As Goldstone stated in the Hugo case:
In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power… This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.
So if the President pardons Schabir Shaik because he fears that Shaik will spill the beans on the mutually symbiotic (and corrupt) relationship between himself and the President or because Shaik had deposited a million bucks into his bank account, the decision could be set aside by a court.
But what would happen in this case where Shaik was convicted of bribing the President? If the President now pardoned Shaik would a court find that this decision was taken in bad faith because it was irrevocably tainted by the previously corrupt relationship between him and Shaik? I might be wrong, but I suspect the Constitutional Court will not declare the granting of such a pardon an act of bad faith as there is no evidence that the previously corrupt relationship between the President and Shaik had continued after Shaik went to hospital… err I mean prison.
This does not mean it would be wise for the President to pardon Shaik. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.
No one has presented a plausible argument that Shaik was wrongly convicted. It would manifestly also not be in the public benefit to pardon Shaik as it would send a signal that all are not equal before the law and that if one happens to be a friend of the President one could escape just punishment for corruption merely because of one’s connections to the head of state. This would undermine respect for the rule of law and would surely send a signal that in South Africa who one knows is far more important than what one did or did not do.
Herewith ends the lesson.
Agree
The only real basis for arguing that it would be in the public benefit to pardon Shaik would be the same conspiracy theory underlying the decision not to prosecute Zuma. A difficult one for Zuma to walk – he can’t dismiss this argument by Shaik without undermining his own position, but if he presents it as a good enough reason for a pardon and his decision is reviewed, then he is put in the awkward position that the bad law used to get him off the hook in the first place will be analysed by the highest court in the country.
Zuma has a skin thicker than a brontosaurus though, so no doubt he’ll brazen his way through it. And no doubt the reputation of our legal system will again be that much shabbier and grimier by the time he’s done.
@ Pierre
(2) The President is responsible for-
(j) pardoning or reprieving offenders and remitting any fines, penalties or
forfeitures;
Does it mean that Shaik will get money back from the AFU?
Pierre,
So what is the problem exactly? That we would need a constitutional amendment in order for the legislature to be able to hold the President to account on pardoning?
Well the last time I checked the DA don’t have enough votes to muster either 50% or 67%. So if Parliament took this bill seriously, and decided that ‘actually, the president’s unfettered rights to pardon are open to abuse’, then even if you are right about needing a constitutional amendment, what would be wrong with passing a constitutional amendment AND the bill?
After all, don’t the South African people deserve a Parliament that oversees executive actions? And isn’t the pardoning process an executive action that is now massively open to abuse? And isn’t our Constitution supposed to be a living document?
I think there are two fatal flaws with your suggestion that this matter is left to rest with the judiciary:
First, timing. How long will it take for our courts to reach a verdict on Mpshe’s decision to drop charges, the Menzi Simelane appointment, Zille’s exclusion from the Hlophe hearings (kudos to you on that one by the way), etc? Well I refuse to believe that the optimal political system is one in which the President is allowed to make an arbitrary, massively detrimental decision on something like, for instance, the release of Eugene de Kock, and for our only solution to that to be “well, let’s wait a few years for the court papers to go through.” Surely to the largest extent possible the legislature should be responsible for executive oversight, and in the case of pardons, the President ought to be accountable to them. And if that takes a constitutional amendment in addition to this bill, then why shouldn’t the DA call for that too?
Second: Sure, you quote a section from Hugo, which says that the pardon power may be subject to review in some cases, but (1) you assume that a piece of obiter necessarily constitutes precedent and (2) you focus only on the second half of it – ignoring the important point raised earlier in it that “it is… difficult to conceive of a case where a constitutional attack could be mounted against [a pardon]“. In other words, even if in extreme cases — such as there being a direct bribe — the President’s decision was reviewable, what about in other cases — such as, for instance, where his decision simply isn’t in the interest of the South African people?
I mean, even if it could somehow be proved that Shaik bribed (or, more likely, coerced/blackmailed) Zuma to pardon him, Hugo makes it pretty clear that the De Kock pardon wouldn’t be subject to review.
And again, one can’t help wondering if our law should not be a bit better than that. Even if it warrants a constitutional amendment in addition to this bill.
And this is all assuming that the proposal wouldn’t pass constitutional muster. That’s far from clear either. Look at the other provisions set out in 84(2). Hardly any of those provisions are not limited by an array of constitutional and legislative requirements of the President. I thus read your Goldstone quote about unfettered discretion with some scepticism.
I should also mention that in spite of the patronising “hey kids, we’re going to learn stuff today” tone you took, that there is nothing within the Democratic Alliance’s proposal that suggests that that judicial review is not another option, or that it has not been considered. For one thing, as mentioned above, Hugo provides very limited space for a pardon — if a political party were to look at Hugo and consider whether it could be of use in stopping, for instance, the De Kock or Waluz pardons, why not go to a plan B?
Pierre. Wow! Good lesson. Respect.
What about the Seriti judgment in April last year?
Legal Brief: “General: Presidential pardons ruling trims executive power
The recent ruling on the presidential pardons process could have far-reaching implications and, some say, affect the President’s power to grant pardons in future. A Mail & Guardian Online report says in the case, a coalition of NGOs argued that the President’s right to grant pardons was not an executive power that could not be challenged, while the state argued that the President had ‘unfettered discretion’ in granting pardons. Judge Willie Seriti ruled in favour of the coalition, saying the granting of pardons was an ‘administrative action’ that was subject to review. Hugo van der Merwe, transitional justice programme manager at the Centre for the Study of Violence and Reconciliation, said the ruling could affect the way all pardons are dealt with in future, whether political or not. Advocate Lwazi Kubukeli, of the Legal Resources Centre, who has been managing the case on instruction from the coalition, concurred. He said Seriti’s ruling could apply outside the ‘special dispensation’ context argued in the case. ‘It’s certainly open to that kind of interpretation,’ said Kubukeli.
Full Mail & Guardian Online report
pierre, i see you disagree with the Seriti judgment (interim interdict)
http://www.mg.co.za/article/2009-05-08-pardon
Here is Clinton’s brilliant argument for his exercise of presidential clemency in 2001:
http://www.nytimes.com/2001/02/18/opinion/18CLIN.html?pagewanted=all&ei=5070&en=ec04e1c8cb40752d&ex=1183780800
Currently in the US the rationale for executive clemency is unashamedly retributive rather than redemptive; Republicans have used it sparingly. We do not have the standards for considering clemency made public (this is what the DA is after) as the US does.
http://www.justice.gov/pardon/petitions.htm
“Section 1-2.112 Standards for Considering Pardon Petitions
In general, a pardon is granted on the basis of the petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence. The Department’s regulations require a petitioner to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application (28 C.F.R. § 1.2). In determining whether a particular petitioner should be recommended for a pardon, the following are the principal factors taken into account.
1. Post-conviction conduct, character, and reputation.
An individual’s demonstrated ability to lead a responsible and productive life for a significant period after conviction or release from confinement is strong evidence of rehabilitation and worthiness for pardon. The background investigation customarily conducted by the FBI in pardon cases focuses on the petitioner’s financial and employment stability, responsibility toward family, reputation in the community, participation in community service, charitable or other meritorious activities and, if applicable, military record. In assessing post-conviction accomplishments, each petitioner’s life circumstances are considered in their totality: it may not be appropriate or realistic to expect “extraordinary” post-conviction achievements from individuals who are less fortunately situated in terms of cultural, educational, or economic background.
2. Seriousness and relative recentness of the offense.
When an offense is very serious (e.g., a violent crime, major drug trafficking, breach of public trust, or white collar fraud involving substantial sums of money), a suitable length of time should have elapsed in order to avoid denigrating the seriousness of the offense or undermining the deterrent effect of the conviction. In the case of a prominent individual or notorious crime, the likely effect of a pardon on law enforcement interests or upon the general public should be taken into account. Victim impact may also be a relevant consideration. When an offense is very old and relatively minor, the equities may weigh more heavily in favor of forgiveness, provided the petitioner is otherwise a suitable candidate for pardon.
3. Acceptance of responsibility, remorse, and atonement.
The extent to which a petitioner has accepted responsibility for his or her criminal conduct and made restitution to its victims are important considerations. A petitioner should be genuinely desirous of forgiveness rather than vindication. While the absence of expressions of remorse should not preclude favorable consideration, a petitioner’s attempt to minimize or rationalize culpability does not advance the case for pardon. In this regard, statements made in mitigation (e.g., “everybody was doing it,” or “I didn’t realize it was illegal”) should be judged in context. Persons seeking a pardon on grounds of innocence or miscarriage of justice bear a formidable burden of persuasion.
4. Need for relief.
The purpose for which pardon is sought may influence disposition of the petition. A felony conviction may result in a wide variety of legal disabilities under state or federal law, some of which can provide persuasive grounds for recommending a pardon. For example, a specific employment-related need for pardon, such as removal of a bar to licensure or bonding, may make an otherwise marginal case sufficiently compelling to warrant a grant in aid of the individual’s continuing rehabilitation. On the other hand, the absence of a specific need should not be held against an otherwise deserving applicant, who may understandably be motivated solely by a strong personal desire for a sign of forgiveness.
5. Official recommendations and reports.
The comments and recommendations of concerned and knowledgeable officials, particularly the United States Attorney whose office prosecuted the case and the sentencing judge, are carefully considered. The likely impact of favorable action in the district or nationally, particularly on current law enforcement priorities, will always be relevant to the President’s decision. Apart from their significance to the individuals who seek them, pardons can play an important part in defining and furthering the rehabilitative goals of the criminal justice system.”
The Seriti judgment is currently before the CC. The question there is whether the victims of a crime should be heard before the President pardons those convicted of serious human rights abuses and centers on the unique nature of that case (an ad hoc committee made recommendations about pardons without hearing from victims as part of a political deal). I think the Seriti judgment was a good one and those who argued the case before CC are quietly optimistic that the CC might agree. However, in Shaik’s case there would be an INDIVIDUAL pardon (not a mass pardon) and the victims of his corrupt ways will be difficult to identify, so it might not be applicable – even if the CC confirms the case. There is also another case being considered on whether the President can be forced to make a decision to pardon or not to pardon within a reasonable time.
Mr Smith, I think respect for the Constitution would require generally that one does not propose legislation that would not pass constitutional muster. The pardon power contained in the Constitution obviously constitutes a watering down of the Rule of Law principle and the drafters of the Constitution might have been short-sighted to provide such a broad power to the President (at a time when Mandela was President and people thought the President would mostly act wisely), but in the absence of a Constitutional amendment I suspect any Bill forcing the president to consult the Minister and applying his mind to the criteria listed might be in trouble. I am waiting with bated breath for the CC judgment on this!
The way I understand the position, a pardon is not equal to an acquittal, and it does not wipe out the crime. It simply acquits the criminal of the penalties and forfeitures annexed to the crime.
An article in De Rebus, 2005 Jan/Feb by Brenda Wardle with the title “Whose rights are these anyway?” makes intersting reading. She states that when she requested a pardon application form from the Deparment of Justice, she found a note stapled to the form with the following contents:
‘IMPORTANT NOTE
• The President grants pardons. This power is only exercised in highly exceptional circumstances.
• To pardon a person is to forgive a person for his/her deeds. The pardon process is therefore not available to persons who maintain their innocence and is not a “super” appeal procedure.
• Pardon is only granted for minor offences after a period of 10 years has lapsed since the relevant conviction.
• For many serious offences (for example if the relevant court viewed the offence in such a serious light that direct imprisonment was imposed) pardon will not be granted even if more than 10 years have lapsed since the conviction.
• In principle, the process is not available to persons still serving their sentences as it will be seen as an interference by the Executive with the Judiciary.’
I wonder if the “requirements” will be discarded in the cases of Mr Shaik and Mr De Kock.
Chris says:
January 14, 2010 at 13:16 pm
Boesak?
As they often seem to do, the DA is fiddling with the wrong end of the horse. Parliament should take more care of who they appoint as President. If they did, the desire to be able to block the President’s power of virtually unfettered discretion in such a matter would not arise in the first place.
Maggs Naidu says:
January 14, 2010 at 14:29 pm
Was Boesak pardonned? I can’t remember that. But Wit Wolf was.
@ Chris – I cannot seem to post the response here – will do so somewhere else
“The process for Presidential Pardon in terms of section 84(2) (j) of the Constitution of the Republic Of South Africa, 1996 to expunge criminal records a special reference to Dr Allan Aubrey Boesak’s case”
http://www.info.gov.za/speeches/2005/05011815151001.htm
Chris says:
January 15, 2010 at 7:25 am
Pierre’s post January 18, 2010 at 6:25 am, answers your question.
And it opens up many, many more!
Very briefly, the answer lies in the Promotion of Administrative Justice Act (PAJA). In its definition of ‘administrative action’, the Act specifically excludes certain powers of the executive. The power to pardon criminals given to the President is not on the list of exclusions – thus it IS an administrative action and can be reviewed by the High Court ito PAJA. Even if someone were to successfully argue that PAJA does not apply, the approach taken by Justice Sachs in various cases that all executive and administrative actions must comply with the principle of legality would enable the High Court to review any decision to pardon anyone. Since the backbone of the principle of legality is to be found in Chapter 1 of the Constitution, and since Section 1 requires compliance with the rule of law and with the principle of equality, it would be easy to argue that a decision to pardon Shaik would violate both of these. By the way, it would be just as easy for the DA (or anyone else for that matter) to have the decision to release Shaik on medical parole reviewed using both PAJA and the principle of legality. It is quite clearly a final decision (since the govt refuses to send it to the Appeal body) and quite clearly falls within the scope of PAJA. Why they haven’t thought of doing so instead of whining about the decision in some vain hope that their complaints will lead to it being overturned is a question only their lawyers can answer.
In Legal Brief, Loammi Wolf points out that Shaik lodged a pardon petition in September 2008 for himself and another in early 2009 for remission of his forfeited assets. Can a pardon restore forfeited assets? If this is possible, a pardon for Shaik must be impossible as the President himself may be a beneficiary. Wolf refers to Shaik funding a wedding for Zuma after Shaik was convicted.
http://www.legalbrief.co.za/article.php?story=20100118112232618
“Winnie slams possible De Kock pardon
Jan 25, 2010 8:09 AM | By Sapa
“ANC MP and struggle stalwart Winnie Madikizela-Mandela has criticised the possibility of former Vlakplaas head Eugene de Kock receiving a pardon, according to a newspaper report”.
http://www.timeslive.co.za/news/article276082.ece
It seems as if someone is awake on the ANC bench (in parliamment) and not busy aligning themselves with camps. I hope she is supported by many in the ANC.
Last time I checked Dennis Bloom was an expert on these matters of correctional service. Cope needs a launchpad..
Gwebecimele says:
January 25, 2010 at 11:50 am
“Cope needs a launchpad”.
Fly me to the moon, comes to mind!
Hey Maggs!
I see Helen “Botox” Zille has also come out against pardon.
Quick, we must demand that De Kock be freed tomorrow!
(By now we understand the rule: ANYTHING the racist white liberals are for, we are against!)
Hey Dworky,
Ste that unimportant thingy aside.
Report progress on MASFOM.
Great lesson!
I’ve been answering questions about pardons, expungements and Seals for a year now, seems people don’t really know what they are or what they do.
Once again a bunch of legal people offer up their brilliance. What’s the point Shaik is free – he plays golf, has dinner with friends at restuarants and pretty much does whatever he wants. If there was ever a profession in this country that should hang its head in shame. there IS justice, only it exists for the rich who can afford to go to court and the politicians and their cronies who are above the law. For the rest of us that have to be subjected to the arrogance (as is truly represented by the opening sentence of this article) of the legal profession i just hope one day a few of you decide you do actually want to provide a service to the people of this country instead of babbling on to show everybody how smart you are.