Prerogative of mercy… In the interest  of transparency and accountability

LOVANIA PERTAB

Bar-at-Law

Our constitution as drafted by the British mentions the privilege of the prerogative of mercy for Mauritian citizens who are convicted by a Court of Law.

This prerogative of mercy in Mauritius is exercised through two bodies:

• Firstly, there is a Commission on the Prerogative of Mercy (the Commission) consisting of a chairman and not less than 2 other members appointed by the President. The Constitution mentions that the Commission acts in its own deliberate judgment.

• Secondly there is the exercise of the power of the President of the Republic who acts on the directive of the Commission and who has the following prerogatives:

(a) to grant to any person convicted of any offence a pardon, either free or subject to lawful conditions; (A free pardon is exceptional in as much as the offence committed will not appear in the certificate of character of the convict).

• (b) to grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for any offence;
• (c) to substitute a less severe form of punishment for any punishment imposed on any person for any offence; or

• (d) to remit the whole or part of any punishment imposed on any person for an offence or of any penalty or forfeiture otherwise due to the State on account of any offence.

The President has the option to request the Commission to reconsider any  advice tendered by it and shall act in accordance with such advice as may  be tendered by the Commission after such reconsideration.

In the exercise of the powers as conferred above upon the President, he shall act in accordance with the advice of the Commission.

An interview of ex Chief Justice Sir Victor Glover in the press when he was the Chairman of the Commission gives us an insight how the Commission works: the Commission has a file regarding a convict before it and is in presence of various circumstances regarding the file: the business activities of the convict, his family situation etc.

Sir Victor Glover admitted that during his tenure, he had followed the advice of the then Presidents on 2 occasions.

He was also of the opinion that it was for the President to decide whether to explain any decision he takes to the public.

When we dissect the provisions of our law, we can make the following observations:

• The President has the ultimate power, acting in his own deliberate judgment to appoint or revoke the Commission;
• The President has the power to request the Commission to reconsider his recommendation.

This relationship between the President and the members of the Commission cannot be considered as devoid of a certain “lien de subordination” between the President and the Commission.

In the present case of Chandra Prakashsing Dip, the sentence of the said Dip has been converted from a custodial one to a non custodial one.

This decision which is being largely regarded as abusive by many Mauritian citizens gives rise to some questions:

1. The prerogative of mercy is generally the right and power of a state president who wins a direct national election and has the democratic legitimacy of taking such decisions. Bearing in mind that the President is a political appointee in Mauritius, is our system for granting mercy bullet proof against political interference, the more so that case law in UK points out that the prerogative for mercy is “probably” a matter of policy and therefore not justiciable?

It is high time that the power of the President to request the Commission to reconsider his recommendation became a matter of public knowledge and the reasons thereof also be made public.

1. In any democratic society, it is generally accepted that only a Court of Law can decide on the guilt of a person and convict him accordingly. We can certainly advance the opinion that in exercising so freely and loosely such powers as conferred by it in our constitution, the Commission may be usurping the powers of the judiciary in its fundamental function of conviction and sentencing.

In the UK, the exercise of mercy must only be considered as a constitutional safeguard against mistakes and it is generally argued that the subject of mercy must not be “tainted with unclean hands”. One can argue that it is certainly not the case regarding C.P. Dip.

1. In the interest of transparency and accountability, it is high time that Commission gives to the public the reasons for its decisions on mercy of After all, a judgment must give its motives for its decision and no institution must place itself above the judiciary.