The pardoning power as a duty of justice
Jurisdiction | South Africa |
Published date | 24 May 2019 |
Date | 24 May 2019 |
Pages | 159-175 |
Citation | (2002) 15 SACJ 159 |
Author | B C Naudé |
ARTICLE • ARTIKELS
The pardoning power
as a duty of justice
B C NAUDE*
Summary
This article evaluates the current status of the presidential power of pardon
by looking at the nature of the power and the general process of an
application for pardon. Due to constitutional implications and certain
procedural inadequacies, the current pardon system needs to be revised.
There is a need for a principled and consistent exercise of this power. Such a
principled approach can be found in the retributivist theory of justice. In
terms of this theory, granting a pardon is a duty of justice. Retributivism
requires pardons when there is no liability to punishment, and it permits
pardons when there is liability without moral culpability. In order to give full
effect to the nature and purpose of this power, certain procedural safeguards
should be adhered to. Pardons should be limited to persons who have been
tried, convicted and sentenced and should only be valid if accepted by the
person pardoned. Pardons should also be given for specific offences and any
pardon decision should be accompanied by a written account of the reasons
for the decision. However, it would be undesirable to have legislation that
directly regulates the president's power to pardon by imposing procedural or
substantive requirements. The most acceptable solution would be to revise
the pardon power from within. In order to solve some of the procedural
problems inherent in the current system, provision could be made for the
automatic scrapping of a previous criminal record after a period of time.
Introduction
In terms of s 84(2)(j) of the Constitution,
1
the President has the power to
pardon or reprieve offenders and to remit any fines, penalties or forfeitures
* B Iuris LLB LLD (Unisa),
Associate Professor of Law in the Department of Criminal and
Procedural Law, University of South Africa
1
The Constitution of the Republic of South Africa, Act 108 of 1996.
159
(2002) 15 SACJ 159
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SACJ •
(2002) 15 •
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that have been imposed. This discussion concentrates on one of these
powers, namely that of pardon. Pardon is the power to unconditionally
forgive or excuse an offender his offence.
2
Legally speaking such a person is
regarded as if he never committed the offence in question and any criminal
record that he may have is expunged.
3
The current approach to pardons needs to be revised due to certain
procedural inadequacies and constitutional implications. On the procedural
side, there are many reasons for having a system that considers pardons on a
more strict, streamlined and cost effective basis. One of the main reasons is
that applications for pardon have increased drastically over the last few
years.
4
On the constitutional side, the decision to pardon is no longer
unreviewable. Furthermore, the very essence of this power, as defined by the
Constitutional Court, necessitates such a second look.
Constitutional nature of the pardon power
General
The general policy is that application to be pardoned is made to the
Department of Justice and Constitutional Development which handles and
considers each application on its own merits and advises the President
accordingly, but the President may also decide to pardon someone of his
own accord.
5
Because of the nature of this power, there could, in certain
circumstances, be an obligation upon the President to consider a specific
application for pardon.
6
When the President decides to pardon an offender, this power is exercised
2
Also called 'absolute pardon', full pardon', 'unconditional pardon' or 'free pardon' cf BA
Garner (ed)
Black's Law Dictionary
7 ed (1999) 1137; D Thompson (ed)
The Concise Oxford
Dictionary of Current English
9 ed (1995) 992; DM Walker
The Oxford Companion to Law
(1980) 917.
3
Cf E du Toit
Straf in Suid-Afrika
(1982) 506 where he discusses pardon under the heading of
'Grasie/kwytskelding deur die staatspresident'; WPM Kennedy & HJ Schlosberg
The Law and
Custom of the South African Constitution
(1935) 126; EW Ridges and GA Forrest
Constitutional Law
(1950) 342. Although this is the effect in terms of South African law,
pardon does not always have the effect of blotting out all existence of guilt cf AM Steiner
'Remission of guilt or removal of punishment? The effect of a presidential pardon' (1997) 46
Emory
LJ959; CD Berger 'The effect of presidential pardons on disclosure of information: Is
our cynicism justified?' (1999) 52
Okla LR
163; L Sebba 'The pardoning power — A world
survey' (1977) 68
J Crim L & Criminology
83.
4
According to the Department of Justice and Constitutional Development applications have
increased from 107 per year in 1992 to 775 in 2001.
5
This follows due to the nature of the power.
6
Cf MC Love 'Of pardons, politics and collar buttons: Reflections on the president's duty to be
merciful' (2000) 27
Fordham Urb LJ
1483; KD Moore
Pardons: Justice, Mercy, and the Public
Interest
(1989) 128-9.
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