Presidential pardons in Mauritius: An Unchecked Executive Power?

Presidential pardons and the Mauritian Constitution

The Commission on the Prerogative of Mercy is found in Article 75 of the Constitution. This article gives the President of the Republic the power to “ grant to any person convicted of any offence a pardon, either free or subject to lawful conditions,” as well as to reduce or lessen a conviction.

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.

Therefore,

• 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.

The Problem

Controversial use of presidential pardons: a brief recap

In the past, several Mauritian presidents have used their power to grant controversial pardons in some high-profile cases. For instance, Peroomal VEEREN was granted such presidential pardons.Last example,the case DIP the son of the Commissionner of Police

Rethinking presidential pardons in Mauritius
The cases discussed above indicate that in Mauritius, the granting of presidential pardons have been abused, as they seem to have undermined the role of the judiciary, rather than rectify miscarriages of justice. This is evidenced by the fact that several sentences in the above cases were affirmed by the Supreme Court, which is the ‘highest and final superior court of record in the Republic’, as highlighted in the Constitution. Therefore, presidential pardons should be subject to checks and balances. Such checks and balances are vital to uphold the separation of powers between the three branches of government – a doctrine incorporated in the Mauritian Constitution.
Some countries have empowered their judiciaries to review executive pardons. For instance, in the United Kingdom, the courts have the jurisdiction to review the exercise of the Royal Prerogative of Mercy by the monarch (on advice of the justice secretary) ‘in accord with accepted public law principles’. Thus, in the United Kingdom, the power to grant pardons does not go un-checked. Meanwhile, in India, through the landmark case of Epuru Sudhakar & Anor v. Government of Andhra Pradesh & Ors, the Indian Supreme Court held that it has jurisdiction to judicially review the pardoning power of the president.

The recourse available in Mauritius

None all judicial review has failed

Conclusion
The current practice of granting presidential pardons in Mauritius is deeply problematic. However, a reform to amend our Constitution, the course of action provided through for the Supreme Court to review pardons is much needed. It can provide an avenue to maintain checks and balances on executive power, and prevent a culture of injustice, which undermines the rule of law.

KM SAWOO
President L’espace Citoyen