The Government's plans to recommend a presidential pardon for on-the-run paramilitaries raises constitutional issues, writes Jim Duffy
When Éamon de Valera and John Hearne designed Bunreacht na hÉireann they created a presidential power to award pardons. No such similar power existed in the text of the 1922 Free State Constitution that could be used by the king or the governor-general. Though Article 13.6 simply mentions the president's role, not the government's, Article 13.9 states that all powers and functions not explicitly excluded "shall be exercisable and performable by [ the president] on the advice of the government". As a result, it is the government which instructs the president on when to exercise the power to pardon.
But there are serious questions that arise from the Government's proposed "on-the-run" scheme. Article 13.6 says: "The right of pardon and the power to commute or remit punishment imposed by any court exercising judicial jurisdiction are hereby vested in the president . . ."
That could be read two ways. Does the reference to courts exercising judicial jurisdiction only apply in the second part (ie, the power to commute and remit punishment), with the right of pardon being separate? Or is everything in the sentence subject to the "courts exercising jurisdiction"? If the latter is the case, then a serious doubt could exist as to the legality of the Government's proposed scheme for "on-the-runs" presidential pardons, at least in those examples where there has not been a court case and conviction in the State.
Under the criminal law, everyone is innocent until proven guilty beyond reasonable doubt. If there has not been "punishment imposed by any court exercising judicial jurisdiction" it is difficult to see on what constitutional grounds the Government could advise a presidential pardon, a point made by Pat Rabbitte in the Dáil.
Even more seriously, the Government proposes to create a body to advise it on individual cases. In normal circumstances the Government cannot exercise judicial functions, nor can any body not created in accordance with the Constitution do so. If an individual "on-the-run" has committed a crime, there seems to be no normal constitutional scope for a non-judicial body to step in in place of the courts and reach judgments as to their status. Legally under the Constitution that is the courts' function. Article 34.1. is blunt: "Justice shall be administered in courts established by law and by judges appointed in the manner provided by this Constitution . . ."
One option might be covered under Article 38.3.1 which allows for the creation of special courts where the ordinary courts "are inadequate to secure the effective administration of justice, and the preservation of public peace and order". However, the type of committee the Government is talking about hardly qualifies as a court and could not seem to meet any judicial definition in the Bunreacht. Since the ending of the national emergency in 1995, the overused emergency legislation route is not an option.
The body envisaged by the Government seems to be designed not to offer judgment on any criminal acts an "on-the-run" stands accused of, but simply on whether they are covered by the Belfast Agreement. If they are bona-fide "on-the-runs", the plan seems to be that this extra-judicial body would recommend to the Government that it recommend to the President that she award a pardon.
Of course political creative ambiguity has been central to the peace process. But the Constitution simply does not allow for such a concept. Deciding that one group who committed breaches of the criminal law qualify for special treatment, a presidential pardon, because of the organisation they belong to, while another set must go before the courts and face jail, could be said to breach principles of natural justice and the concept of equality of citizens, a principle at the heart of republics.
In particular, asking the President to grant a pardon to someone who technically has not been convicted of a crime in the State and so has no conviction to be pardoned for, would arguably be a step too far. Presidents at their inauguration take a binding declaration of office where they promise to "maintain the Constitution and uphold its laws . . . [ and fulfil their] duties faithfully and conscientiously in accordance with the Constitution and the law" (Article 12.8.). A president who pardoned someone who had not been convicted of a crime, simply to suit a government's desire for more political creative ambiguity, could face accusations that they had broken their oath. The pardon power has been used, legitimately, to deal with miscarriages of justice. It was never intended to be used to pardon people without convictions, much less those not convicted because they went on the run.
In the Dáil Pat Rabbitte asked whether the Government was going down the questionable presidential pardon route in the hope that the courts would view a presidential pardon as being outside legal scrutiny. Not all presidential acts are protected from scrutiny. If it was she who was making the decision, it could be argued that the courts would view it as not liable for judicial review. But as one of the functions where she would be acting on "advice" (unless she viewed that advice as itself unconstitutional, which is a possibility) it is quite possible that the courts would see the decision as an executive, not a presidential, act and so quite capable of judicial review. (In 1976, when President Ó Dálaigh considered whether he could use the pardon power unilaterally without government advice, two senior counsel (both later senior judges) told him bluntly that pardons were an executive, not a presidential, matter.) For the Government, even if it got the President to go along with a questionable use of the presidential pardon, the prospect of judicial review would be the ultimate nightmare. For unlike the Government, the courts would not look for a little creative ambiguity wriggle room, but would follow the letter of the law. And it is in analysing the letter of the law that the whole scheme seems potentially at its weakest.