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Home » Constitution Design » Questions for constitution makers in Nepal » Legal System

Pardons


In any system there may be good reason for a person who has been convicted of a crime to be pardoned, or for their sentence to be reduced. These reasons include the situation where it now seems that the person was convicted in error (sometimes it seems unfair to call this a 'pardon' which suggests being forgiven for something one has done). The reason might be a humanitarian one: if the person convicted is dying of a serious disease and wants to spend his or her last days with family, for example.

The Interim Constitution says that
151 Pardon: The Council of Ministers may grant pardons, and to suspend, commute or remit any sentence passed by any court, special court, military court or by any other judicial or quasi-judicial, or administrative authority or institution.

Under the 1990 Constitution the Council of Ministers recommended to the King who formally granted the pardon. This idea about Heads of State granting pardons is an old one - and seems to date from the days when the criminal justice system was seen almost as a matter between the King and the people, rather than being for the protection of the people (even now the official name of criminal cases in the UK is The Queen against. The accused person). These days we should not think of a pardon as being some sort of act of grace from the ruler.

A decision to grant a pardon may presumably be made on political grounds under the Nepal Constitution. "Political decisions" might be party political or in the national interest - for example in order to restore good relations with another country. In the case of decisions about prosecutions many people now take the view that any decision taken on this sort of ground should be something that is made public and for which the decision maskers should be politically accountable. Should not the same approach be used for clemency?

Under some constitutions there is a procedure involving the advice of a committee - the advice of which may or may not be binding. There seem to be three possible basic models:
  • the largely political (where the decision is made by a political body possibly with advice from some non-political body,
  • the wholly independent, and
  • the hybrid where the decision is made by a body which has some political input in the form of a Cabinet Minister.

India, like Nepal, is an example of the decision being made by the Cabinet (what the Constitution of India says is that the President may pardon, but this is a power that must be exercised on the advice of the Council of Ministers). Some Constitutions give the decision to the cabinet as a whole though after considering the views of a committee (e.g. Papua New Guinea). Uganda gives the decision-making power to a Committee comprising the Attorney-General (who is a Cabinet Minister) and 6 'prominent citizens appointed by the President'. Ghana gives the decision to the President acting 'in consultation with' the Council of State, which is composed of regional representatives, 11 members appointed by the President and one ex-Chief Justice, one ex-Chief of Defence Staff, one ex-Inspector-General of Police and the President of the House of Chiefs.

A decision will have to be made as to whether in Nepal under the new constitution this should be a matter for political authorities or for some other body. If there is to be any possibility of pardons by the political authorities, in what circumstances? Many decisions can be made by the courts or prison authorities. If it now seems that a person was wrongfully convicted of a crime, it does not seem right to grant pardon (this word suggests that the person was guilty but is being forgiven).

Other Constitutions

The Constitution of Papua New Guinea says (important phrases underlined):

151. GRANT OF PARDON, ETC.
  1. Subject to this Subdivision, the Head of State, acting with, and in accordance with, the advice of the National Executive Council [Cabinet], may grant to a person convicted of an offence or held in penal detention under a law of Papua New Guinea-
    1. a pardon, either free or conditional; or
    2. a remission or commutation of sentence; or
    3. a respite of the execution of sentence; or
    4. a less severe form of punishment for that imposed by any sentence, and may remit or refund, in whole or in part, any fine, penalty or forfeiture paid or payable to a governmental body.

  2. Where an offence has been committed, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant a pardon, either free or conditional, to an accomplice who gives evidence that leads to the conviction of a principal offender.
  3. Except in a case referred to in Subsection (2) or as otherwise permitted by or under an Act of the Parliament, the exercise of the power conferred by Subsection (1) shall not be held out, offered or promised in advance of conviction.

  4. Nothing in this section prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems.
In drafting a proposed new Constitution for Kenya (2006), Yash Ghai suggested the following (important phrases underlined):

169 Clemency
  1. The Committee on Clemency consists of a part time chairperson and six part time members appointed by the President, from among persons nominated by the Appointments Commission.

  2. No state office holder may be appointed to the Committee on Clemency.

  3. The function of the Committee is to make recommendations to the President, who must act in accordance with the recommendations, as to the following-
    1. the grant of a free or conditional pardon to any person convicted of an offence,
    2. the postponement, either for a specified period or indefinitely, of punishment imposed on a person; or
    3. the substitution of a less severe form of punishment for a punishment imposed on a person for an offence.
    4. When appropriate, the Committee on Clemency may consult the victims of a relevant offender, before making recommendations under this Article.

    5. Where the grounds for exercising the power of clemency relate to rehabilitation of the offender, the Committee must act only on the advice of, or in consultation with, the Correctional Service.

    Questions worth discussing about this are:
    • Should the victims be consulted in such a situation?
    • Is it right that the decision is made by a body that includes no state officers at all?
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