Journal of Criminal Law and Criminology Volume 68 Article 5 Issue 1 March
Spring 1977 The aP rdoning Power--A World Survey Leslie Sebba
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Recommended Citation Leslie Sebba, The aP rdoning Power--A World Survey, 68 J. Crim. L. & Criminology 83 (1977)
This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. 1 Copyright © 1977 by Northwestern University School of Law Printed in U.S.A.
CRIMINOLOGY
THE PARDONING POWER-A WORLD SURVEY
LESLIE SEBBA*
The resilience of the power to pardon of- abolition of this institution, a path which was fenders is a remarkable phenomenon, in view followed in France for a number of years in the of some seemingly powerful reasons for the wake of the revolution of 1789. disappearance of this institution. These reasons If the ideological reasons for doing away with are both ideological and practical in character. the pardoning power are rooted in constitu- The ideological grounds derive from the fact tional theory, the practical reasons are related that the pardoning power appears to be an to the development of modern penal systems. archaic survival of an earlier era, during which The pardoning power has historically served a the State was governed by an omnipotent ruler, number of functions, most of which are ade- who might have an occasional urge to demon- quately provided for today by other legal insti- strate his benevolent disposition. This seems tutions which have been developed to meet something of an anomaly in a twentieth century these needs. For example, the avoidance of constitutional democracy having a commit- imposing criminal liability on persons lacking in ment-at least in principle-to a delicate sepa- mental capacity or acting in self-defense is now ration of powers designed to ensure the inde- governed by the penal code itself. The need to pendence of the judiciary. This independence assuage doubts regarding the possibility of a would appear to be threatened by vesting in a miscarriage ofjustice is now commonly met by a non-judicial authority the power to pardon of- system of appeals and rehearings before the fenders duly convicted and sentenced in the courts. The individualization of punishment is course of ajudicial process. It is no coincidence provided for within the framework of the sen- that the ideological controversy regarding the tencing discretion now generally bestowed desirability of the pardoning power reached its upon the courts, and subsequent developments peak during the eighteenth century,' when the can be taken into consideration by parole groundwork of much of our prevailing political boards. Even the most dramatic use of clem- theory was being laid. Thus while Montes- ency powers, viz., the commutation of capital quieu 2 believed that there was room-at least sentences, has lost much of its importance in under a monarchical system-for the institu- view of the sparse use of the death penalty in tion of clemency, Beccaria3 advocated the total contemporary times. Finally, the use of par- dons to secure rehabilitation, by removing the * Institute of Criminology, Hebrew University, Je- stigma of a criminal conviction, has widely been rusalem, Israel; Visiting Fellow, Center for Studies in superseded by special laws providing for judi- Criminology and Criminal Law, University of Penn- cial or statutory rehabilitation, or for the ex- sylvania. 4 I See, Sebba, Clemency in Perspective, in ESSAYS IN pungement of the criminal record. HONOR OF ISRAEL DRAPKIN (S. Landau & L. Sebba It is not the intention of this survey to arrive eds., forthcoming) [hereinafter cited as Sebba]. at any conclusions as to the desirability or use- 2 DE IESPRIT DES Lois (G. Truc ed. 1944). 3 Let the laws, therefore, be inexorable, and fulness of the clemency power in the contempo- inexorable their executors in particular cases rary world; this is an issue which the writer has 3 •.. As punishments become more mild, clem- considered elsewhere. The main objectives of ency and pardon becomes less necessary. Happy the nation in which they might some day be Eden and Colquhoun, concentrated their attacks on considered pernicious. the abuses evident in the exercise of the pardoning C. BECCARIA, AN ESSAY ON CRIMES AND PUNISH- power, rather than its very existence. See Sebba,supra MENTs 58-59 (H. Paolucci trans. 1963). Beccaria's fel- note 1. low critics included Filangieri and the philosopher 4 See text accompanying notes 42-70 infra. Immanuel Kant. English critics, such as Fielding, 5 Sebba, supra note 1. LESLIE SEBBA [Vol. 68
this comparative survey of clemency provisions THE COMPARATIVE TABLE throughout the world were to discover (1) the The schedule appearing below presents the extent to which the institution of clemency is a information obtained in a systematic fashion in universal feature of contemporary legal sys- the form of a table containing data relating to tems; (2) which bodies are formally invested one hundred jurisdictions. The table is con- with decision-making authority to grant par- fined to those items on which information was dons; (3) whether those or other bodies hold most forthcoming, namely: the legal source of the reality of power in this respect; and (4) to the pardoning authority; the mechanism determine the main types and functions of whereby pardoning decisions are made; cate- clemency under the various systems. gories of offences or penalties which are ex-
METHOD & SOURCES cluded from the pardoning power or for which special provisions are made; and the types of The survey was conducted in the-following pardon available in the jurisdiction concerned. way: in 1970 a circular letter was sent by Profes- Certain points of clarification, as well as addi- sor Israel Drapkin, then Director of the Insti- tional information of interest, such as statistical tute of Criminology in the Law Faculty of the data, are presented in the right-hand column. Hebrew University of Jerusalem, to some sixty The salient features of the survey, as well as different countries around the world. The re- certain areas of interest not appearing in the quests were directed both to professional con- table (such as the relationship between the par- tacts in those countries, and also, with the as- doning power and amnesties) are discussed in sistance of the Israel Ministry for Foreign Af- the following text. fairs, to official agencies. By this means infor- mation was received from about fifty countries. THE EXISTENCE OF A PAIDONING POWER This information was later supplemented by a Responses to the circular revealed that a study of the constitutions of these and other power to pardon offenders existed in all the countries, using material available from such 6 jurisdictions from which responses were ob- compendia as Peaslee's Constitutions of Nations tained. Moreover, the original library survey of and Blaustein's Constitutionsof the Countries of the constitutions produced a similar result for World.' These sources were reexamined in 1976 other countries, and in only one recently to allow for subsequent developments, recent adopted constitution was no reference to clem- political events having been cross-checked with ency found. The 1975 constitution of the Peo- The Statesman's Yearbook 1975-1976.8 The mate- ple's Democratic Republic of China is somewhat rial compiled here is thus subject to the follow- skeletal in form and provides minimal informa- ing reservations: (a) the use of nonconstitu- tion on the functions of the various govern- tional sources -primarily the codes of substan- mental bodies. The Standing Committee of the tive and procedural penal laws of the respective National People's Congress, to which the par- countries-is selective, and is largely confined doning power was entrusted under the pre- to the countries from which responses to the vious constitution, has the power to "enact de- circular were received; (b) it may be that some crees ... and exercise such other functions and recent constitutional changes (especially in the powers as are vested in it by the National Peo- more politically volatile jurisdictions), have not ple's Congress," which is "the highest organ of yet appeared in the above-mentioned compen- State power under the leadership of the Com- dia, and thus will not be reflected in the analy- munist Party of China."'0 Whether the pardon- sis; (c) the nonconstitutional provisions gener- ing power has been deliberately and finally ally reflect the state of the law in 1970. These omitted from the state fabric is thus as yet provisions, however, being nonpolitical in char- unclear. acter, are less prone to rapid change than the Subject to this exception, the overall picture constitutions themselves. which emerges is that neither ideological nor 6 A. PEASLEE,CONSTITUTIONS OF NATIONS (3d ed. practical objections to the clemency power as a 1965) [hereinafter cited as PEASLEE]. legal institution in the modern age have re- 7 CONSTITUTIONS OF COUNTRIES OF THE WORLD (A. Blaustein & G. Flanz eds. 1971). I Constitution of the People's Democratic Republic 8 THE STATESMAN'S YEARBOOK 1975-1976 (J. Pax- of China, art. 18, (adopted 1954, repealed 1975). ton ed. 1975). 'OId., art. 16. 1977] PARDONING POWER
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Indeed, in this respect there appears to be veloped by twentieth century penal systems. a degree of historical continuity with the pow- Thus Beccaria's vision of a clemency-free mil- ers of the formerly autocratic monarch having lenium does not seem to have drawn percepti- been transferred to his constitutional successor, bly nearer. who remains the ultimate font of mercy vis-a-vis his erring subjects. Superimposed on this image THE LEGAL SOURCES OF THE PARDONING is an image which attributes the pardoning POWER power to the executive arm of government, The basic provisions for a pardoning power which retains the discretion to refrain in ex- are nearly always found in the state constitu- treme cases from absolute enforcement of the tion, the main departures being "basic" or "or- laws of the land. This dual image depends ganic" laws, which in effect take the place of a upon an identity of functions of head of state constitution. Great Britain continues to rely on and chief executive. the royal prerogative, a recognized feature of That the above picture is over-simplistic is her unwritten constitution, and this same pre- revealed by a study of the development of clem- rogative, as delegated, also obtains in certain ency powers over the past two centuries and by jurisdictions of the British Commonwealth, a close examination of the comparative table. such as in Australia and New Zealand. It should The historical point may be made by reference also be observed that in countries with a federal to the constitutional histories of France and the structure, basic provisions may be found both United States. In post-revolutionary France, at the federal level and within the constitutions the acceptance of the need for a pardoning of the individual provinces or states." The ju- power did not entirely dispel reservations about risdiction of the federal pardoning authority is the wisdom of concentrating the decision-mak- not, however, necessarily coextensive with the ing power solely in the hands of the head of jurisdiction of federal courts and laws (as in the state in his capacity as chief executive. The 1802 United States). Thus, for example, in India the constitution provided for the establishment of President may commute the death penalty even an advisory council in which all three branches where state laws are involved.2 of government were represented. 1 Similarly, the 1848 constitution provided for mandatory THE PARDONING AUTHORITY consultation with the Conseil d'Etat, and in seri- A perusal of the comparative table below re- ous cases (i.e., convictions in the High Court) veals that in the overwhelming majority of the right to pardon was reserved to the Na- countries, clemency powers are vested in the tional Assembly. Finally, under the constitution of the Fourth Republic, the power was vested in n With the exception of Australia the present sur- the President sitting in the High Council of the vey was confined to the federal or national level. For Judiciary, an indication that the power was not a somewhat outdated study of the clemency power in the individual states of the United States, see Neal & Hager, Summary of tie Provisions of the Constitution and 13 The Cyprus constitution provides for a distribu- Statutes of the Several States Relating to Pardons, 20 J. tion of power between President and Vice-President, CRIM. L. & C. 364 (1929). For a more recent analysis, reflecting the respective community affiliations of the see Weihofen, Pardon and other Forms of Clemency, in holders of these offices. THE LAW OF CRIMINAL CORRECTIONS 569 (S. Rubin " The King or Queen (Belgium, the British Com- ed. 1963). monwealth, Denmark, Nepal, the Netherlands, and 12 Cf. The jurisdiction of the federal authority in Norway); the Prince (Monaco and Liechtenstein); the Malaysia, where the Head of Federation's power to Emperor (Japan); the Grand-Duke (Luxembourg); pardon is confined to certain special cases and the the Amir (Kuwait) or the Yang di Pertuan Agong ruler or governor of the individual state retains such (Malaysia). power in respect of all other offences. See compara- ' J. MONTEIL, LA GRACE EN DROIT FRANCAIS MOD- tive table, infra. ERNE 22 (1959) [hereinafter cited as MONTEIL]. LESLIE SEBBA [Vol. 68 to be regarded as purely executive in nature. 6 Under the new Swedish constitution, on the In the United States the theory prevailed that other hand, the pardoning power is vested in the power to grant clemency, like all other pow- the government as such. In Sweden, the execu- ers, ultimately resided with the people, who tive body does not play the additional role of were consequently able to delegate it to which- head of state, a function still fulfilled by the ever body they chose.17 The identity of the monarchy, now apparently deprived of any preferred body tended to vary from era to era. substantial power 19 During the pre-Independence period there Finally, in a few countries the power to par- were three models for the institution of clem- don offenders is reserved exclusively to the ency: (a) vesting the power in the governor; (b) legislature. 2 This is the situation under the vesting the power in the governor acting only constitutions of Switzerland, Uruguay and, for with the consent of the Executive Council; (c) some purposes, Turkey. In Nicaragua the vesting the power in the legislature. During the power is vested primarily in the legislature, but period 1790-1860 there was a revival in public supplementary powers are also granted to the trust in the executive, and twenty-one states President and the judiciary. adopted model (a), while four preferred model It is thus evident that the clemency power is (b). Since 1860, in keeping with the increasing not universally regarded as the sole prerogative professionalization of the pardoning power, of the head of state. Indeed, the only clear the majority of state constitutions have pro- feature emerging from an analysis of the con- vided for some sort of autonomous board of stitutions included in the present survey is that pardons having either formal decision-making in no case is this power vested primarily2' in a power or at least an advisory role in this re- judicial authority. Nor does the model of the spect. head of state acting within the framework of a An analysis of the comparative table confirms judicial body22 appear to be prevalent today. that attribution of the pardoning power to the Since the role of the head of state is at times head of state-cum-chief executive is not univer- ambiguous, the fact that the head of state may sal. Under some constitutions the power is be the sole repository of the clemency power vested in a collective body rather than in an does not in itself unequivocally determine the individual: the State Council in Bulgaria, the constitutional nature of the power. In historic German Democratic Republic, Poland, Ro- times, the sovereign ruler generally combined mania and South Korea; the Praesidium of the the functions of all three branches of govern- legislative assembly in Albania, Mongolia and ment-executive, legislative and judicial-and the Ukraine; the Presidential Council in Da- even as these functions became differentiated, homey and Hungary, the Revolutionary Com- he continued to play a pivotal role in all three mand Council in Libya. Most of these bodies, as branches. Thus the British Crown formally re- their names sometimes indicate, perform tasks akin to those of a president." " The Instrument of Government of 1974 refers to the duties and the functions of the monarch, but does 16 Under an earlier proposal the decision would not specify what they are. The intention of depriving have belonged to the High Council of the Judiciary, the monarchy of its powers, however, was evidenced presided over by the President who would have had by a provision specifying that the articles of the con- equal voting rights. The proposed constitution con- stitution relating to the monarchy would become ef- taining these provisions, however, was rejected by the fective only upon the death of the then-reigning French people. See MONTEIL, supra note 15, at 33-34. monarch. 17 THE ATTORNEY GENERAL'S SURVEY OF RELEASE 20 It may be that in some jurisdictions vesting the PROCEDURES, VOL. III: PARDON 87-88 (1939) [herein- pardoning power in the executive or other body does after cited as 1939 SURVEY]. not deprive the legislature of an equivalent power. In IS In the U.S.S.R. the Praesidium of the Supreme this connection see Weihofen, Legislative Pardons, 27 Soviet "is the highest permanent functioning organ of CAL. L. REV. 371 (1939); Radin, Legislative Pardons: the State .... It performs all sorts of functions, and Another View, 27 CAL. L. REV. 387 (1939) [hereinafter defies the theory of Separation of Powers . . . It cited as Radin]. performs functions, executive in character, which in 21 For a discussion of the bodies playing a secondary other countries are the prerogative of the Chief Exec- role in the clemency decision, see text accompanying utive, Head of the State, King, or President." S. notes 32-40 infra. PATEL, World CONSTITUTIONAL LAW AND PRACTICE 22 Under the constitution of France's Fifth Repub- 185-86 (1970). Similarly, the State Council in Poland lic, the President no longer sits on the High Council fulfills the function of a collective head of state. See of the Judiciary when it issues clemency decisions. He PEASLEE, supra note 6, at 708. may, however, consult with the High Council. 1977] PARDONING POWER tains this threefold capacity today; and while United States serves simultaneously as head of recent tradition identifies the prerogative of state and as the sole chief executive, 29 the presi- mercy with the executive arm,H the historical dents of the Federal German Republic and of justification for this is not entirely clear. In an Israel are for the most part symbolic figures, earlier day, this prerogative was linked with the the effective political power being wielded by Crown's control of criminal procedure: 4 the the Federal Chancellor and Prime Minister, re- King was, in Hume's view, "the fountain of spectively. The French presidency fulfills a role grace and mercy, as he is ofjustice. ''25 There is somewhere between these extremes, for al- at least some ground here for identifying the though the office of Prime Minister also exists pardoning power with the judicial arm of gov- under the French constitution, substantial ex- 2 6 ernment. ecutive power is retained by the President." Similarly in the republics, the prevailing This variance in the nature of the presiden- model under which the power to pardon is tial role seems to add strength to the view that vested in the president does not obviate doubts the dominant tradition is essentially one of vest- as to the character of this power, 27 because the ing clemency powers in the head of state as such, role of president varies considerably from state and not specifically in his capacity as chief exec- to state.2 ' Thus, while the President of the utive. Thus, the Communist states which en- trust these powers to a presidential or state 2 The widespread use of the expression "executive clemency" reflects this notion. The control of the council, rather than to the Council of Ministers, prerogative of mercy in modern times by the Home are substantially in keeping with this tradition. Secretary (see text accompanying note 36 infra) has The main exceptions remain those few jurisdic- reinforced the association with the executive aim. tions which seem reluctant to confide a power However see note 26 infra. 24 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW to interfere with the judicial process in any 415 (1938), following Blackstone. The Crown's role in body other than the legislative assembly, which the matter of clemency has also been described as the in most systems is regarded as the ultimate 'waiver of royal rights conceived as rights of prop- sovereign authority.3I erty." Radin, supra note 20, at 391. The preceding analysis has been confined to " Cited in 1 L. RADZINOWICZ, A HISTORY OF THE CRIMINAL LAW 130, n. 73 (1948) [hereinafter cited as a discussion of the formal vesting of the clem- RADZINOWICZ]. ency powers as reflected in basic constitutional 26 The English case of Hanratty v. Lord Butler of provisions. There are two reasons, however, Saffron Walden, 115 Sol.J. 386 (1971), compared the why the designated body may not necessarily Home Secretary's immunity in respect of the pardon- ing power with that ofjudges and advocates. Charac- wield substantial power. First, the constitution terization of the source of the pardoning power as may expressly provide that the power is to be executive or otherwise (the "organic" criterion) exercised on the advice of some other body. should, however, be differentiated from the charac- Secondly, even without such express provision, terization of the exercise of this power (the "func- the constitutional norms or practice of the indi- tional" criterion). Applying the functional criterion, many governmental acts are of a mixed character and vidual country may require that the acts of the cannot readily be denominated as either "legislative," formal authority, especially those of a symbolic "executive," or 'judicial." KLINGHOFFER, ADMINIS- head of state, require the sanction of a more TRATIVE LAW (1957). In Israel, as in the United actively political figure. These situations will be States, the attorney general's discretionary power in the matter of prosecution has been labeled by the considered in the next section. courts as "quasi-judicial." 27 In France, the immunity of the exercise of the THE INVOLVEMENT OF OTHER BODIES IN THE clemency powers from judicial review had always CLEMENCY DECISION been attributed to its classification as an "act of state." In 1947, however, the Conseil d' Etat concluded that In most jurisdictions the clemency process immunity from judicial review derived from the judi- involves more than a petition from the offender cial character of the pardon. MONTEIL, supra note 15 29 See also art. 5 of the Chad Constitution of 1962, at 56-57. ' Constitutions may be differentiated according to which specifies that "the President of the Republic shall be the Head of State and of the Government." the degree to which the executive is subject to the " But with control of the legislature, distinguishing the "presi- regard to his clemency powers, see note dential-executive" model from the "parliamentary- 27 supra. executive" model. L. WOLF-PHILLIPS, CONSTITUTIONS "' In this respect, the legislature may be seen to OF MODERN STATES xix (1968). In states following the wear the mantle of the erstwhile monarch, whose latter model, the head of state is less likely to have pardoning power was regarded as simply an incident substantial political power. of his sovereignty. See 1939 SURVEY, supra note 17, at LESLIE SEBBA [Vol. 68 directly to the pardoning body, followed by the achieved in practice, however, by the device of latter's decision. A more complex procedure is ministerial countersignature. These constitu- usually adopted, involving the examination of tions specify that decisions emanating from the the petition and the issuing of an opinion on primary authority require the countersignature the part of some other body. The question of the prime minister, or the minister responsi- arises as to the nature of such "secondary" bod- ble for the matter to which the decision relates, ies and their power vis-a-vis the "primary" deci- or both. Such a requirement appears, inter alia, sion-making body. in the constitutions of Belgium, Burundi, Italy, Under some systems it is explicitly stated that Lebanon, Luxembourg, Mauritania, Spain and the ultimate decision belongs to the primary Turkey. It also appears in some constitutions body alone." Other systems, on the other (Austria, Greece and South Africa) in which hand, specify that the primary pardoning au- another governmental authority is designated thority is not entitled to exercise this function of as enjoying a "recommending" capacity, fur- his own accord, but is dependent on the initia- ther emphasizing the role of this authority in tive or recommendation of another. This may the clemency process. be provided for by the constitutional or other It is sometimes specified,37 and nearly always statutory provisions33 relating to clemency. Al- implied, that the absence of the required coun- ternatively, the accepted constitutional practice tersignature would render the clemency deci- of the state (whether on a written or conven- sion nugatory. Further, since the effect of such tional basis) may require that the powers of the countersignature is to render the countersign- primary authority-especially where this au- ing minister or ministers responsible for the thority is no more than a political figurehead- decision, 38 the view is generally held by the be exercised only in accordance with the wishes governments or ministers concerned that even of the government or its appointee.3 4 if no "advisory" role is imputed to them by the It is, indeed, most frequently the executive constitution, they are nevertheless entitled to arm which is designated as the "recommend- an effective and perhaps decisive say in the ing" body. This is the case under the constitu- pardoning decision. The French Minister of tions of Austria, Greece, the Irish Republic, Justice, M. Pierre-Henri Teitgen, once stated Japan, New Zealand, Niger, Rhodesia, Singa- that his obligation to countersign presidential pore, South Africa and Sri Lanka. In these clemency orders did not depend upon his con- cases it seems clear that the "secondary" author- curring with their content, which remained ity has been granted the effective decision-mak- within the exclusive prerogative of the Presi- ing power.35 In Great Britain, on the other dent.39 A happier solution, in this writer's view, hand, it is the constitutional convention which is that obtaining in the Congo (and formerly has transferred effective power from the 3 6 Crown to the Home Secretary. 11 Art. 75 of the Chilean constitution specifies that all orders of the President of the Republic must be Under many constitutions no such advisory signed by the minister of the respective department, role is explicitly attributed to the government and "shall not be obeyed without this essential re- or its representatives. The same result is quirement." 31 Such responsibility is generally understood to be political, but under some systems may also connote 87. The modern trend, however, is to attribute sover- legal responsibility. J. Laferribre, Le ContreseingMinis- eignty to the people. See, e.g., art. 4 of the Constitu- triel, in LA REVUE GE NgRALE D' ADMINISTRATION 39 tion of Uruguay. (1908). 32 The Zambian Constitution provides that the 11See MONTEIL, supra note 15, at 46-47. The siiua- President acts "in his own deliberate judgement and tion in Israel in this respect has been analyzed in L. shall not be obliged to follow the advice tendered by Sebba, Pardon and Amnesty-Juridical and Penolog- any other person or authority." ical Aspects (1975) (unpublished doctoral thesis, Uni- 33 The constitutional provisions themselves fre- versity of Jerusalem) (hereinafter cited as Sebba, quently state that the constitutional powers will be 1975]. where it was concluded that the intention of exercised "in accordance with the law." the basic law was to vest effective decision-making 3 See, e.g., art. 67 of the Austrian constitution. power in the President despite the requirement of a Except, perhaps, in the case of Niger, where the ministerial countersignature.A "middle" view, advo- language is somewhat equivocal. cated by Professor Klinghoffer, regards the clemency " The development of this convention during the decision as an example of a "composite act." See also course of the past two centuries is described in F. H. KELSEN, GENERAL THEORY OF LAW AND STATE 95- BRESLER, REPRIEVE (1965). 96 (1945). 19771 PARDONING POWER also in Dahomey), where the requirement of a SPECIAL CATEGORIES ministerial countersignature for acts per- The constitutional provisions relating to par- formed by the President is dispensed within don are usually stated in general terms, which the exercise of the pardoning power. Just as the do not indicate the precise scope of the pardon- requirement of the countersignature is often ing power. Questions as to the applicability of waived for the appointment or dismissal of pardons to disciplinary offences or to adminis- ministers, so too, a distinction could be made trative penalties are left to supplementary legis- between purely formal duties of state, where lation or judicial interpretation. On the other the requirement would apply, and functions hand, in at least two special areas, it is not involving a genuine exercise of presidential unusual to find express reference to certain prerogative powers, where it would not. categories of offence, offender or penalty. Recommendations do not emanate exclu- The first area is that of political crimes. Here sively from executive sources. They also may the special provisions may apply to political issue from bodies of ajudicial, quasi-judicial or offences in general, but often relate specifically legislative character. Some constitutions (Al- to proceedings of impeachment involving geria, Upper Volta, Zaire) follow the French members of the government. In such cases, model and bestow an advisory role on the High restrictions are imposed upon the exercise of Council of the Judiciary. In Chad such a role is the pardoning power. Clearly a system which granted to the Supreme Court itself. In Viet- provides for impeachment proceedings as a nam, on the other hand, a special committee of means of exercising legislative control over the the National Assembly exists for this purpose. executive would be frustrated if the executive Finally, some constitutions provide for the es- could simply void the proceedings at will by tablishment of an Advisory Committee on the granting pardons. For this reason the applica- Prerogative of Mercy (Kenya, Nigeria, Uganda, tion of the pardoning power to impeachment Zambia), a Pardons Board (Malaysia), a High proceedings is often made dependent upon the Council of Pardons (Ivory Coast) or other con- initiative or the consent of the legislative body. sultative council (Greece). The body designated Such is the case in Belgium, Denmark, Greece, by the constitution for an advisory role may Iceland, Liechtenstein and Luxembourg. In thus be associated with any of the three Finland the initiative must come from the High branches of government, or it may constitute Court of Impeachment. Under the Chilean an ad hoc combination. constitution, the pardoning power is itself re- It should be again emphasized that the actual served to Congress in such cases. In Norway the power of these "secondary" bodies in the deci- only form of clemency which may be exercised process may vary considerably.4 0 sion-making in cases of impeachment 41 is the commutation of The formulation of the constitutional provi- the death penalty. sions may not be decisive in this respect. As to the application of the pardoning power Finally, it should be pointed out that under to political offences in general, the philosophy most systems there will exist some machinery expressed in the constitutional provisions is far for investigating the circumstances of the indi- from uniform. For while Liberia excludes all vidual petitions. Such investigation may be re- political offences from the President's power to quired of a particular body, perhaps judicial, pardon, in Colombia and Panama a power to whose purpose is less to advise than to gather or pardon is granted to the President only in rela- sift the information on the basis of which a tion to political offences. In Nicaragua the par- decision can subsequently be made. The role of doning power is exercised with greater facility these investigative bodies-a few of which ap- in these cases. The Congress can pardon politi- pear in the fifth column of the table below-will cal offenders without the initiative on the part rarely be mentioned in the constitutional provi- of the executive required in other cases, and sions, and their status may best be labeled "ter- the President may also grant such pardons tiary." when the Congress is adjourned. Finally, in New Zealand and Queensland it is provided 40 The role of the consultative council in Greece is clearly subsidiary to that of the Minister of Justice. Even though consultation with the council is manda- " Other forms of restriction are found in Zaire tory, it should rather be classified as a "tertiary" body. and the Philippines. LESLIE SEBBA [Vol. 68 that the pardoning of political offenders may tion, but not reprieves, which are specified in- be made conditional on their banishment. dependently. In England, on the other hand, The other area in which special provisions the term "commutation" was never generally are frequently found is that of the death pen- adopted. The substitution of one penalty for alty. The most usual type of provision man- another was included in the rubric of the "con- dates that capital punishment cases be reviewed ditional pardon." It was thus not surprising that by the body or bodies whose task it is to con- the Israeli Supreme Court, faced with a law sider applications for pardon. This applies, for providing for "pardons and reductions of sen- example, to the Advisory Committees on the tences, 43 examined both English and Ameri- Prerogative of Mercy in Kenya, Malawi, can sources, but was unable to reach unanimity Uganda and Zambia, as well as to the appropri- on the question as to whether commutations 44 ate authorities in Malta, Singapore and Sri were included. Lanka. In Jordan all death sentences require The majority of constitutions do not directly the confirmation of the King. The object of all address these questions. Instead, the precise these provisions is clearly to ensure that, where forms which the clemency power may take are the ultimate penalty is to be inflicted, no case left to regular or even subsidiary legislation, or deserving of consideration by the clemency au- to judicial interpretation. It was the practice in thorities will be overlooked as the result of a British colonial legislation, however, to specify failure on the part of the defendant to submit a the various forms of clemency, and this model petition, or for want of adequate investigation. can still be found in the basic provisions of On the other hand are the provisions obtain- Kenya, Malaysia, Malta, New Zealand, Nigeria, ing in New Zealand, where the death penalty Singapore, Sri Lanka, Uganda and Zambia. can be commuted only by a decision of the The forms commonly specified in these juris- Executive Council and in Turkey, where the dictions are (a) pardon, free or conditional; (b) decision must be made by the legislative assem- respite of execution for a specified or indeter- bly. These models appear to indicate a harsher minate period; (c) substitution of a less severe 4 policy towards capital cases, since the decision- form of punishment (commutation); 1 (d)re- making power has been vested in a more formal mission of the whole or part of the punishment. body. The last type usually specifies that remission may apply to any penalty or forfeiture incurred TYPES OF PARDON for any offence, and this would appear to in- As indicated in the introductory section, the clude sanctions incurred by way of administra- institution of pardon is an ancient one, and tive proceedings. throughout history it has served a number of The legal provisions which describe the var- functions, according to the needs of particular ious types of pardon rarely specify the objective legal systems at particular times. It is not there- for which each type is intended. 46 In this re- fore surprising that a multitude of terms were spect the fourfold typology mentioned in the applied to the clemency function and that their last paragraph is consistent with the impression usage has not always been consistent. Thus, in created by the clemency provisions of most le- the English language alone, the following terms gal systems, namely that they are designed to are encountered: free pardon, full pardon, 43Section 6 of the Transition Law (1949). conditional pardon, commutation, remission, 44 F.H.13/60, Attorney General v. Matarra, 16 reprieve, respite, amnesty, clemency, mercy. P.D.430. Agranat, J., took the view that the commtt- By way of illustrating the problematic nature tation of sentences fell within the President's pardon- ing power, but that reprieves did not. The court of the terminology, a comparative observation settled the issue by construing the case before it as a may be made regarding the laws prevailing in conditional pardon. The issue was ultimately resolved the United States, England and Israel respec- by the legislature, which redefined the President's tively. The United States Constitution followed powers to include commutation. See § 11(b) of the Basic Law: President of the State (1964). the English jurists in providing for reprieves and 41This type is not specified 42 in the provisions of pardons. The term pardon is used in a generic New Zealand and Singapore. As mentioned above, sense, and apparently includes both reduction however, commutation was traditionally achieved in or remission of sentence as well as commuta- England by means of the conditional pardon. 46 One notable exception relates to the pardon of 42 U.S. CONsT. art. II, Sec. 2. accomplices; see text accompanying notes 52-54 infra. 1977] PARDONING POWER facilitate a post-convictional modification of who provides information leading to the con- judgment, usually because of changes in the viction of the principal offender may be par- offender's personal conduct or circumstances, doned. This type of pardon appears to be con- or possibly because of doubts relating to the fined exclusively to countries influenced by the propriety of his conviction. The last considera- common law. It reflects a practice which was tion is more evident in jurisdictions influenced considered the mainstay of the English criminal by the common law, since a "free pardon" im- justice system during the end of the eighteenth plies some form of corrective to the conviction and the beginning of the nineteenth centu- itself.47 The French gr&e, on the other hand, is ries.5 2 It was thought that only by making such concerned exclusively with the punishment. an offer to the accomplice could the principal The main reason for this difference between be apprehended and convicted. 5 This practice, the two systems is that the French legal system however, was the subject of much controversy developed a separate remedy for suspected and has since fallen into desuetude. The mod- miscarriages of justice: rivision, or retrial. This ern system of "turning King's (State's) evi- is a special form of court proceeding which may dence" is no longer conditional on the grant of be instigated for specified reasons.48 This insti- a pardon. Nevertheless, as noted, many hith- tution is generally foreign to the common-law erto colonial jurisdictions still retain this form countries, 49 which rely on the pardoning power of pardon, at least formally. to accomplish this purpose.50 In this connection As a concluding note on this topic, it should it may be mentioned that the Mexican constitu- be observed that this type of pardon, apart tion has adopted a middle road and distin- from being controversial as a matter of policy, guishes pardons "of necessity," which will be also has an unusual feature from the formal automatically granted on proof of miscarriage point of view. It is the only form of pardon of justice, from pardons "of grace," which are designed specifically for offenders-or rather discretionarily granted for outstanding services for suspects-who have not yet been convicted to the state.5 1 In the former case, specified by the courts. Most otherjurisdictions preclude 5 4 grounds of application are laid down which are. any exercise of clemency prior to conviction; almost identical with the grounds for applying and even some jurisdictions providing for the for revision under French law. pardon of accomplices (e.g., New Zealand) do Another objective of the pardon reflected in not allow for pre-convictional pardon in any the clemency provisions of some countries re- other case. lates to the role of criminal accomplices. The Another purpose of the pardoning power in clemency provisions of New Zealand, Singa- some jurisdictions is to remove the stigma of pore and Sri Lanka state that an accomplice past convictions. Here the clemency power is 47 The extent to which a pardon serves to eliminate usually invoked a considerable period of time all the adverse effects of a conviction has been a topic after the sentence has been served, and the of considerable debate in Anglo-American jurispru- offender has had an opportunity to prove that dence. See, e.g., Williston, Does a Pardon Blot Out he has earned his reinstatement as a first-class Guilt?, 28 HARV. L. REV. 697 (1915); Weihofen, The citizen. In recent years, the increasing sensitiv- Effect of a Pardon, 88 U. PA. L. REv. 177 (1939). 48 In brief, these reasons include: (a) the live ap- "3 See Radzinowicz, supra note 25, Vol. II at 53. pearance of the "victim" of a homicide; (b) the convic- 1 1d. It was even thought necessary to offer a tion of another defendant for the same offence, re- financial reward as further inducement to the accom- vealing an inconsistency; (c) the conviction for per- plice. jury of one of the witnesses at the original trial; (d) ' The provisions themselves may specify applica- the emergence of new evidence indicating the ac- tion to "convicted offenders" or "penalties"; or the cused's innocence. traditional interpretation of the clemency institution, 49 Israel has attempted to merge both legal tradi- as in the case of the French grace, may be so limited. tions in this area; see, Courts Law § 9 (1957). The U.S. Constitution, on the other hand, which 50 The manner in which the clemency powers have refers only to "offences," is thought to permit pre- been exercised to remedy miscarriages of justice has convictional pardons, as illustrated by the Nixon case. been the subject of concern in recent years. See Jus- Czechoslovakia and Liechtenstein also provide for the TICE, HOME OFFICE REVIEWS OF CRIMINAL CONVIC- suspension or cancellation of criminal proceedings as TIONS (1968). part of the clemency power, while in Iceland the "' Compare the old English distinction between President may order the withdrawal of a prosecution "pardons of course and right," and "pardons of "for cogent reasons." See also the new Swedish consti- grace"; M. HALE, PLEAS OF THE CROWN 250 (1678). tution. LESLIE SEBBA [Vol. 68 ity to the need for removing the stigma at- and (c) it applies primarily to political of- tached to the ex-offender has given rise to a fences. 9 As a result of these differences, many number of attempts to produce a comprehen- constitutions exclude the power to grant am- sive solution to this problem. Included among nesty from the clemency power vested in the these attempts are expunging the criminal re- head of state or chief executive, and grant it cord;"3 providing for its non-disclosure after a instead to the legislature. This has almost be- specified period of time has passed since the come an additional identifying characteristic of conviction was imposed or the sentence an amnesty. Typical examples of constitutions served;-" or the use of special evidentiary rules reserving the right of amnesty to the legisla- based on similar considerations." The French ture, while vesting the power to pardon in the system, and those which it has influenced, have head of state, are Finland, Jordan, the Nether- long maintained a special institution for this lands and Panama. Other constitutions, how- purpose, la rihabilitation, where rights can be ever, such as those of Burma and the German restored either byjudicial decision or, in minor Democratic Republic, recognize the distinction cases, by automatic operation of law. Other between pardons and amnesties, but vest both 60 systems, however, including some which are powers in the same body. only now adopting one of the alternative solu- The English common law, however, has tions indicated above, have used the pardoning never developed the concept of an amnesty. power to this end. In some cases, such as Bel- The historical practice of passing Acts of Grace gium and Japan, this objective is prominently has ceased,6 ' and the occasional need for an mentioned in the statutory provisions relating amnesty of prisoners is met today through the to the pardoning power. In the last instance at exercise of executive clemency powers. Simi- least, "legal" rehabilitation can be regarded not larly, under American law, because the Consti- as an incidental consequence of pardon, but as tution refers only to pardons and reprieves, it one of its major forms. was uncertain which branch of government Consideration of the types of pardon existing would have the power to grant amnesty and under various systems around the world cannot how far its effects would differ from those of a be concluded without some reference to amnes- pardon.62 In practice, amnesty proclamations ties. The current survey does not purport to have on occasion been made by the President, deal with the subject of amnesties, since amnes- sometimes supported by Congressional ac- ties are analytically distinct from pardons from tion .3 a juridical point of view and are so dominated Further confusion has been created by the by their political connotations that they seem to concept of the "general" or "collective" pardon. have little in common with other forms of clem- 59 In recent times there has been criticism of the ency. The relationship of amnesty to these practice of granting amnesties for non-political off- forms of clemency, however, must be clarified ences in some countries. "Ils ont ainsi fait de here. 'amnistie, dans certain cas, une sorte de grice ou de ainsi le trouble dans la technique The term "amnesty" generally connotes an rehabilitation,jetant juridique" (Thus, they have made amnesty, in certain institution differentiated from pardon in the cases, a kind of pardon or rehabilitation, throwing following respects: (a) it is general, in that it the confusion into the judicial procedure.). P. applies to categories of offenders and not to BOUZAT & J. PINATEL, TRAIT9 Dr DROIT PLNAL ET tE named individuals; (b) it removes the effects of CRIMINOLOGIE 685 (1970) [hereinafter cited as BOuzAT & PINATEL]. the conviction and not merely of the sentence; 60 In some of these instances, where the term am- nesty is coupled in the same provision with the par- ' See generally Damaska, Adverse Legal Consequences doning powers, it may also appear in the comparative of Conviction and Their Removal, 59 J. CRIM. L.C. table as a "type of pardon." Since this may reflect no P.S. 347 (1968). more than an accident of drafting or classification, 36 See Israel's Criminal Registration Bill (1975), and undue significance should not be attributed to these similar proposals in various jurisdictions in the cases. United States, such as Pennsylvania. 61 See ERSKINE MAY'S PARLIAMENTARY PRACTICE 57 See England's Rehabilitation of Offenders Act (18th ed. B. Cocks 1971). (1974), which renders evidence of "old" convictions 62See L.C.K., The Power of the President to Grant a (determined on the basis of given criteria) inadmissi- GeneralPardon orAmnestyfor Offenses Against the United ble in court. States, 8 AM. L. REG. 513 (N.S.) (1969). -8 For Belgium, see art. 87 of the Penal Code; for " Migliore, Amnesty: An HistoricalJustification for Its Japan, see The Offenders Rehabilitation Law (1949). Continuing Viability, 12 J. FAM. L. 63 (1872). 19771 PARDONING POWER These terms ostensibly indicate acts resembling Finally, reference must be made to two other a pardon in all respects save that the benefici- "hybrid" institutions. First, the term indulto, aries are designated by category rather than on which appears in legal literature of the Spanish an individual basis. 64 Some legal systems, there- speaking countries, is generally the equivalent fore, assimilate the general pardon with the of the French grdce. In Uruguay, however, in- regular pardoning power, and distinguish it dulto, like amnistia, is a legislative prerogative, from amnesty. For example, the Belgian king gracia being granted by the High Court (in has the power to grant not only individual, but military cases by the President). Similarly, in also collective pardons, while the right to grant Italy the government is empowered to pass leg- amnesty is reserved to the legislature. In other islation granting either amnesty or indulto, the jurisdictions, however, the generality of the legal outcome of the latter resembling that of power is the critical feature. Thus, under the the presidential pardon (grazia).6s Secondly, in constitution of Chile, which vests the individual the French legal literature the expressions grdce pardoning power in the President, general par- amnistiante or grdce amnistielle are encountered. dons are classified with amnesties and fall These refer to a discretionary power, vested in within the prerogative of the legislature.65 the President or the government under an am- Conceptual uncertainty is compounded by nesty law, to apply amnesty to selected individ- the linguistic translation of terminology in- uals falling within certain categories.6 9 Analyti- 70 volved in a survey such as the one upon which cally, therefore, this is a form of amnesty. the current analysis is based, as well as by the translation of the very concepts and institutions EFFECTS OF PARDON themselves from one system to another. Thus, The aspect of the pardoning power which the Hebrew expression usually used to denote probably attracts the most attention in the legal amnesty literally means "general pardon," and literature of the individual countries concerns differentiation between the effects of amnesty the legal effects of the pardon. No attempt will and pardon under Israeli law becomes diffi- be made to deal with this topic comprehensively cult. 66 This problem is aggravated in countries, within the framework of this analysis. There including Israel, which have been influenced are two reasons for this: first, the problems by the common law. At common law, one of the arising are too manifold, and the solutions de- functions of the pardon is to undo the effects veloped by the various jurisdictions too diffuse of a conviction, a result which is generally to bear systematic comparison. Second, the seen as the identifying characteristics of am- norms applicable in this area are not usually 67 nesty. found in the constitutions, but rather in regular codes, special statutes relating to pardons, or in 64 These pardons normally take the form of a re- the case law. duction in the length of prison sentences in honor of Accordingly, this analysis will be confined to some national or royal celebration. They are thus three observations. First, the distinct in character from the political amnesty. Un- civil law systems, like individual pardons, however, their rationale is to as indicated earlier, generally emphasize that be found in the special situation or mood of the benefactor, rather than in the circumstances of the Israeli law, the effects of a pardon have been held to beneficiary. include the obligation of the state to repay a fine 65 The term "general pardon" sometimes refers to imposed as a result of the offense to which the par- the practice of granting a number of pardons to don relates. Under civil law systems, the effects of an named individuals at the same time. Examples of this amnesty are, of course, much more extensive that are the French grdces gdniralesannuelles, and the par- those of a pardon, which is normally confined to that dons granted three times per year in the Dominican portion of the punishment remaining executory. Republic. See comparative table. Such pardons are 1s See 3 V. MANZINI, TRATTATO Di DIRITTO PENALE analytically indistinguishable from individual par- ITALIANO 405, 480-491 (4th ed. 1961). dons and must be differentiated from the grdces collec- 69 It has been doubted whether the Presidential tives discussed above. function actually allows such delegation. See MON- 66 See Sebba, 1975, supra note 39. Conversely, the TEiL, supra note 15, at 204. individual pardon under Japanese law is generally 70 Terming this power a form of pardon may have translated as "special amnesty." the effect of imposing undesirable limitations on its 67 Since the Israeli Amnesty Law of 1967 had a scope and applicability. For this reason recent amnes- "saving" clause which restricted its effects to those ties generally use a formulation which omits any ref- expressly provided within the statute itself, the effects erence to "grice." See BOUZAT & PINATEL, supra note were less far-reaching than those of a pardon. Under 59, at 868. LESLIE SEBBA [Vol. 68 the pardon affects only the penalty served by tersignature. The impact of penal reform is the offender and does not affect other conse- sometimes reflected in the appointment of spe- quences of his conviction. Second, following cial advisory pardon boards or in the reliance the same principle, most systems specify that on prior investigations by criminal justice per- the rights of third parties shall not be affected sonnel. The main exceptions to the general by the pardon, in particular the right of the pattern are (a) the nations which vest the par- victim to compensation, whether as a result of doning power in the legislature alone, a system civil or criminal proceedings. Third, there is an which appears inconsistent with the flexibility inherent desire that the consequences of a par- normally attributed to the clemency power, and don should be consistent with its objectives. (b) the recent Chinese constitution which omits This goal presents considerable problems for all reference to clemency. the common law jurisdictions where the pur- The typology of pardons differs widely, par- poses of the pardon are diffuse and where a ticularly between the common law and civil law result appropriate for one purpose will be inap- systems, and also reflects the purposes and ef- 7 1 propriate for others. fects of the exercise of clemency. Common law Some other aspects of the pardoning power systems use the pardon for a wide variety of appear in the comparative table, but too spo- purposes, such as rectifying miscarriages of jus- radically to allow for systematic analysis. For tice and the rehabilitation of ex-offenders, example, data are occasionally available on the whereas the civil law systems have developed statistics for the petitions for and granting of alternative institutions for these purposes. pardons. However, common law systems are now mov- ing in the same direction of specialization of SUMMARY & CONCLUSIONS function. This is another result of a profession- There are a number of reasons for abolishing alized penal system, in which the pardon essen- the pardoning power in the modern world, tially fulfills a supplementary role. Even if the reasons based on the democratization of politi- role of the pardon is merely residuary, nations cal power on the one hand and attainments in seem to show little inclination to dispense with penal reform on the other. Nevertheless, this the institution altogether. institution remains an integral part of the con- Two areas of application in particular attract the attention of drafters of constitutions such stitutional scheme in almost every jurisdiction. The decision-making power continues to be that special provisions are considered neces- vested most frequently in the head of state or sary: capital cases and political offences. The chief executive. The most common alternative, first has been undergoing a decline but, like the mainly in Communist countries, vests the par- pardon itself, shows great reluctance to disap- doning power in an executive or presidential pear entirely. Provisions under certain consti- body. The democratization of political power tutions for mandatory consideration of clem- has merely resulted in a tendency for formal ency in all capital cases will therefore probably heads of state to share or transfer their effective continue to be of significance. The importance authority to governmental figures who are of political offences, on the other hand, seems more directly accountable to the legislature to be increasing. While the special provisions in and/or to the electorate. This is achieved either this area mostly serve to limit the scope of the through the designation of governmental min- pardon, such restrictions are generally con- fined only to the matter of ministerial impeach- isters as advisors, or by the device of the coun- ment. Further, with the increasing politiciza- " Some of the leading cases in these jurisdictions tion of "common" crimes, it may be that the relate to the question of whether a pardon restores role of clemency will expand in this area. the right of the member of a professional body or a Finally, it should be emphasized that there license-holder to his former status. See, e.g., the Eng- are certain pitfalls in the type of analysis con- lish case of Hay v. Tower Division of London J.J. 24 ducted here, involving broad comparisons and Q.B.D. 561 (1890); the American case Ex parte Gar- land, 71 U.S. (4 Wall.) 333 (1866); the Israeli case of a search for trends and patterns between the H.Ct. 177/50, Reuven v. Chairman & Members of legal systems of some one hundred countries. Law Council, 5 P.D. 737. Apparent or formal similarities between sys- PARDONING POWER tems might conceal practical differences which the reformation of the offender-and this is would only emerge on closer scrutiny of the their most common function today-an evalua- systems concerned, while apparent differences tion of their effectiveness for this purpose 7 2 might disappear. The present survey is not a would not be amiss. substitute for a detailed study of the dynamics 72 The present writer of the pardoning mechanism in individual was able to undertake an empirical evaluation of the effects of an amnesty in countries, including an analysis of the cases or Israel, but no comparable evaluations of the effects of types of cases in which pardons are actually executive clemency seems to have ever been con- granted. Where pardons are used as a tool in ducted.