Public Address - Legal Beagle (Home)

The Quality of Mercy | Jan 31, 2008 13:51

Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.

~ Publius (Federalist, No. 74)

Americans do pardons right.

Marc Rich, Scooter Libby, and Roger Clinton may prove they don't always do them well, but they do them right.

In New Zealand we pardon the innocent. I don't think it too semantic to point out that if you're innocent, you don't need to be forgiven. Indeed, if you are innocent, and the Government accepts that you are innocent, then the government ought to be begging your pardon for erroneously convicting you, or putting you in prison.

The United States Supreme Court has stated that a pardon carries an imputation of guilt, and that accepting a pardon is 'an admission of guilt'. The logic is flawless – to need to be pardoned, you must have done something bad – something, uh, well, for which you should be pardoned.

[A word of explanation – the issuing of a pardon involves the complete wiping of a conviction; the granting of a clemency, a commutation, or a reprieve, involves a lessening a sentence (perhaps replacing a death sentence with life imprisonment, or letting someone out of jail earlier); there are other less significant types: respites – delaying a sentence, remissions – revocation of fines or orders of forfeiture; and you can probably add in amnesties – generalised pardons – too.]

In the US, the place for the convicted innocent to find justice is through the judicial process – indeed that's why it's there. The pardon attorney of the President or of a state governor is well-placed to help decide whether a (guilty) convicted criminal deserves mercy – they are less well-placed to decide whether someone is guilty. Lest I be seen to overstate the matter, they occasionally pardon the innocent as well – I'm not going to go into the state by state variations – but pardons seem best suited for situations where it is felt that the consequences of a conviction now outweigh the gravity of the offending (perhaps because someone has turned their life around).

One consequence of pardoning the guilty is that pardons do, unfortunately, become political. The pardon of Richard Nixon by Gerald Ford, or the commutation of Scooter Libby's prison term by George W. Bush, and the too numerous pardons given to campaign contributors are prime examples. In the race for the Republican presidential nomination Mitt Romney has accused Mike Huckabee of granting too many pardons and commutations, and Huckabee has accused Romney of granting too few – laying particular blame over his twice refusal of a pardon for Anthony Circosta, a decorated military officer who upon his return from Iraq was unable to pursue a career in the police because a conviction relating to an incident with a BB gun as a 13-year-old resulted in a felony conviction that prevented his obtaining a gun licence.

President Bartlett commuted the sentences of 35 people whom he believed were treated too harshly by laws specifying mandatory minimum sentences for various drug offences in the episode of The West Wing through which I found the quote that begins this article. You might disagree with the decisions made, but these are times when the consideration of mercy make sense. There is basically no mechanism in New Zealand through which mercy can be shown (although in certain circumstances, minor offenders can have their records clean slated).

Similarly, our criminal appellate system is not well set up to inquire into the innocence of convicted offenders. Its focus is fixing up mistakes made during the trial - when new evidence arises, or old evidence is called into question, it's highly likely that appeals will already have been exhausted, and getting an extra appeal is incredibly hard. Although the Courts have long had the power to overturn convictions where the jury just got it wrong, until very recently the Court of Appeal have tended to treat this very narrowly: rarely upholding any appeal on the ground that 'it cannot be supported having regard to the evidence'; often holding that where there is any evidence that would support a conviction, a jury's finding should be untouched.

The Royal prerogative of mercy, exercised on the advice of the Minister of Justice, is basically all we have. Two years ago, retired High Court Judge Sir Thomas Thorp called for a specialist tribunal that would enquire into miscarriages of justice. It was not an outlandish suggestion: consistent with growing international recognition of both the frequency of miscarriages of justice, and the utility of having potential miscarriages reviewed by an independent body.

Those who have been falsely convicted don't want mercy, they want justice – and an acquittal is better than a pardon.

I'd have thought it self-evident. We pardon those whom we think deserve forgiveness. We commute the sentences of those whom we think may not deserve complete forgiveness, but have been punished enough. We apologise to those whom we falsely convict. Requiring those who assert they have been wrongly convicted to beg for mercy is fundamentally illogical.

This isn't about whether a particular cause célèbre should have been acquitted, but whether they should be given an appropriate forum in which to make their case. Ad hoc justice, granted through a Royal prerogative, isn't a solution. Not only is the current system not working well, it doesn't even make sense.

In the furore over law and order is it too late to ask for a proper mechanism to pursue justice?

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On the Force of Arms | Jan 22, 2008 10:01

Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government

The Declaration of Independence carries these words espousing the right of revolution – words that have doubtless come to haunt the government of the United States each time some survivalist nut holes up in a log cabin with a small armoury.

It's a statement that perhaps few disagree with – if a Government became so bad, so undemocratic, that only extraordinary measures can fix it, then those measures are justified.

The uprising in Burma has gone from our headlines. I assume it has dissipated – or been quelled. But images of it stuck with me over the summer break, and in especially quiet moments I reflected on what it would take for me to rise up in revolution. It seems so very unlikely in New Zealand, whatever the intercepted ramblings of Te Qaeda in their more lucid moments.

In New Zealand we have democratic means to bring about change – and those who don't succeed in garnering majority support know that in three years' time they can make another attempt. The citizens of Kenya recently found that this "luxury" can be illusory. It's what makes the situation so tragic, and so understandable. When people have voted, and do not feel that the result announced reflects the will of the people, waiting three years appears – and probably is – pointless. When democratic means to bring about change do not exist, rioting isn't necessarily an unreasonable response – it may be the only response.

I also reflected on the circumstances in which a military coup would be reasonable, and where they act as the people's proxy – overthrowing a government the people could legitimately overthrow – a coup can undoubtedly be just. The removal of presumptively lawful authority by popular revolution or by military (or para-military) intervention aren't opposites – each can be done for proper or improper motives, and each can lose legitimacy if they themselves overstep the mark.

I'm unsure whether they're called the reserve powers because they are reserved to the Governor-General alone, but it suits my purposes to assume that is so.

The extent of these reserve powers is unknown, and there is even debate as to whether some exist. It is not true that they've never been used – the appointment of a Prime Minister is a reserve power, exercised by the Governor-General to give effect to the will of Parliament, but not on it's advice or the advice of the Government.

It is suggested that the use of the more drastic of the reserve powers – to refuse assent to legislation passed by Parliament – would cause a constitutional crisis. If anything, the reverse is true. The refusal of assent would likely only follow a constitutional crisis – an unorthodox reaction to an unorthodox action – aimed at restoring balance, rather than causing upset.

I was told in passing some years ago – I think by one of my law lecturers – of an occasion in New Zealand where, not even the Governor-General, but the Administrator (the Chief Justice, or perhaps the President of the Court of Appeal standing in for the Governor-General) advised the Government he'd refuse to sign an order-in-council. I never got the details, but have no particular reason to believe the story is apocryphal.

From what I can recall, the Government of the day had become less than enamoured with the death sentence which was then the penalty in New Zealand for murder, and proposed some executive measure (an order-in-council that would automatically commute any sentence of death to life in prison, perhaps?) to effectively abolish it. The Administrator whiffed, and advised the Government that he wouldn't play an underhand part in a process that would make judicial sentencing of murderers a farce; that if they wanted to remove the death penalty for murder, then they should go to Parliament and amend the law.*

It is highly unlikely that the Governor-General ever would refuse assent to legislation passed through Parliament, but I would like to think that this is because Parliament would never pass a law a Governor-General would feel compelled to reject, rather than something more prosaic – like the Governor-General feeling powerless.

Every first year law student – at least at Victoria, I suspect throughout the country – is exposed to McDowell and Webb's text The New Zealand Legal System and the standard postulation of parliamentary sovereignty: in New Zealand, Parliament is all-powerful and could even pass a law requiring all blue-eyed babies to be shot at birth. It is view most famously expressed by English jurist A.V. Dicey. And it is both widely held and controversial.

Over the course of a number of judicial decisions, Lord Cooke carefully expounded a legal philosophy at odds with the prevailing view of parliamentary supremacy. He was of the view that some common law rights presumably lie so deep that even Parliament could not override them.

In expanding upon his reasoning extra-judicially Lord Cooke penned Fundamentals in the New Zealand Law Journal, "[finding] it necessary to get Dicey out of the way" he opined that Dicey's "immense historical weight ... [continued] among those who prefer not to be troubled by much thinking about the subject." Cooke considered it beyond the power of Parliament to abolish Parliament or elections, or to revoke the power of the Courts to judicially review government action.

I would hope a Governor-General would act in similar circumstances, at least where the prospects of judicial interpretation negating the effect of such a law are low. If Parliament voted to devolve its legislative power to the Prime Minister, or create a new final appeal from the Supreme Court to the Cabinet, it seems like a time for a Governor-General to say "I may be a figurehead, but I'm a figurehead in a democracy, damnit!"

There is no process in New Zealand for challenging the whole of an election result. You can ask for a judicial recount, and you can challenge the election of individuals, or void whole electorate battles, but there's no way of overturning the entire election. If a future government took Chris Trotter's call for "courageous corruption" a step further, and was proved to have engaged in vote-rigging to win an election, I'd expect the Governor-General to dissolve Parliament and call fresh elections against the wishes of the majority of Parliament – especially if the time for any prosecution had expired.

For me, some more minor democratic slights would probably be offensive enough – if Parliament ignored the provision entrenching the three-year term of Parliament, and sought to use a bare majority to extend the Parliamentary term to 10 years, I'd want the Governor-General to refuse.

The convention that the Governor-General acts on the advice of the Prime Minister rests in part on democratic principles – the Prime Minister is elected, and has a public mandate; it must also be premised on the Prime Minister obtaining the office through proper means – obtaining it through corruption, or a legislative coup . It may be that shortly after such drastic action that a Governor-General's position becomes untenable, but that is a price our de facto heads of state should be prepared to pay.

Like a Governor-General ignoring Parliament, a court ignoring legislation in a democracy premised on parliamentary supremacy steps well outside its constitutional role: interpreting legislation. A court intruding on the role of Parliament to an extent not far short of a judicial coup isn't really a best solution, but it may be the only one short of some other sort of coup. It sounds contradictory, but in a democracy premised on parliamentary supremacy, the courts shouldn't only respect parliamentary sovereignty, they should enforce it – even where that means standing up to an executive abusing a parliamentary majority.

I don't want to self-immolate on Godwin's law, but the third trial before the US Nuremberg military tribunals was of judges and lawyers. Those who had given the Nazi regime it's pretence of legality, and those who had delivered judgments enforcing its laws were held legally and morally responsible for their actions. Although the laws they wrote and applied were technically valid they were no more permitted to argue they were just doing their jobs than the guards at Auschwitz.

State action of the sort involved in Nazi Germany's racial purity laws falls clearly on one side of the line, but the rejection of the Nuremburg defence not only establishes that there is a line somewhere but also that the boundary is not demarcated solely by strictly undemocratic or destructive Government behaviour. Presumptively lawful – even popular – actions can justifiably give rise to legitimate extra-constitutional consequences.

For Lord Cooke, in addition to his twin pillars of democratic society – the operation of independent courts and a democratic legislature – legalising torture was not within the lawful powers of Parliament. Doubtless he would have included Duncan Webb's blue-eyed infanticide (an example I believe was originally Dicey's) and any number of other atrocities.

An extra-constitutional reaction is obviously far more fraught where the action is effectively a policy choice – whether to permit torture – and not one where the basis of democracy is threatened – such as whether to abolish elections. I know I want the courts to (over-)step up to stop profoundly anti-democratic actions – those that attack the very basis of our democracy – but I'm not sure where I'd draw the line on other matters in our parliamentary democracy. Killing all blue-eyed babies would be there (or any other genocide), but what else would? The important questions rarely have simple answers.

This is something that binds these constitutional crises together – whether it involves the Governor-General exercising reserve powers to dissolve Parliament or reject legislation, a Court invoking Cooke's fundamentals and overturning legislation, the people marching on the Beehive to overthrow Parliament, or the army arresting the Prime Minister – they each involve one form of legitimate authority supplanting another when it has gone too far.

The actions these bulwarks against tyranny require should not be undertaken recklessly, and each should only be invoked if the preceding did not or cannot occur. Any occasion so grave that a court feels compelled to abandon recognition of parliamentary sovereignty is also an occasion where the Governor-General should have prevented the matter getting that far, and an occasion where – if both fail to act – someone else should.

We are fortunate that any scenario in which such action should be taken in New Zealand is a fanciful thought experiment, but in considering the future of our democracy tough questions should be addressed. What would it take for me to want to rise up? Or you?

* If anyone can fill in the details, or knows I'm wrong, there's a comment thread below.

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