The Constitution is not what Fine Gael thinks it is. Or even what Fianna Fáil thinks it is. Certainly it is not what the Progressive Democrats think it is (although a fairly sure way of knowing what the Constitution is, is by asking Michael McDowell and then assuming it is the opposite to what he says!). Nor is it, regrettably, what I think it is. The Constitution is what the Supreme Court thinks it is. And the rest of us can only guess at what the Supreme Court might think the Constitution to be.
Therefore it is imprudent to be categorical on what the Constitution says about anything. Just because it appears to state something in black and white, doesn't mean it is black or white. Only the members of the Supreme Court can state what it says and even they, individually, would not know in advance what a majority might decide. It isn't quite a lottery, although on some issues it is hardly more than that.
Therefore when Fine Gael says the Constitution asserts that a presidential pardon can come into effect only after there has been a court hearing and decision, be careful. Quite apart from the reality that the party of law and order knows nothing about the law and - in the light of remarks made by several of its members recently on the Pádraig Nally case - cares little about order, they don't know.
The bit of the Constitution dealing with presidential pardon reads: "The right to pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President...." This is Article 13.6.
Now when you read this carefully, it does not state the presidential right to pardon arises from the exercise by a court of criminal jurisdiction. It says the power to commute or remit punishment imposed by a court exercising criminal jurisdiction is vested in the President. It seems to me that the pardon is a quite separate issue from power to commute or remit punishment imposed by a court. So, on this reading, the Government may indeed use the mechanism of a presidential pardon to deal with persons who have reason to fear being arrested and convicted in connection with offences committed before some time in 1998.
You might think on reading this section of the Constitution that a president (acting on the advice of the government, of course) had power to pardon anything. The Constitution says nothing about any restriction on the presidential power of pardon. But, apparently, not so. Someone committed to prison for contempt of court, such as a member of the Rossport Five, for instance, could not be pardoned by the President.
At least that was the view of one of the most influential judges in the history of the Supreme Court, the late Brian Walsh. In a 1973 case he held this was a matter entirely within the jurisdiction of the courts.
One of the present judges of the Supreme Court, Hugh Geoghegan, gave an indication 10 years ago, while a High Court judge, that he wasn't much into pardons or commuting sentences either.
So, folks, we don't know.
But we do know about the politics of this. The pardon device is being introduced, apparently, to get around any possibility that the killers of Jerry McCabe might benefit from a concession to that category of persons known as on-the-runs. The Government is fearful, apparently, that legislation it might introduce to deal with the on-the-runs might be a device whereby the killers of Jerry McCabe would get early release.
I seem to be the only person in the country who thinks that the Government's attitude to the McCabe killers is unpardonable. We entered into an agreement in 1998 which required the authorities here, in the North and in Britain to release prisoners, including even more heinous killers than the McCabe ones. We urged the people of Northern Ireland to vote for this arrangement, however much pain it caused them to see such people go free, on the grounds that this was in the interests of peace, long term, on the island.
But when it came to taking a bit of this pain ourselves, we could not do it. The Government claimed they had made it clear all along the McCabe killers would not be included in a release programme but if that was so why was it not stated in the agreement for which we were all urged to vote? The Supreme Court has held the McCabe killers were "qualifying prisoners" under the Act providing for the release of prisoners. But it said the Minister was entitled to refuse to release these prisoners because no other prisoners convicted from the time of the Good Friday agreement had been released.
But lots of other prisoners, North and South, convicted after the Good Friday agreement have been released.
We now have this controversy over the on-the-runs simply because we were unwilling to do here what we urged others to do in the North and Britain. It is a symptom of the baseness of our politics.