Mercy and Judicial Review in the Commonwealth

Judges in Commonwealth jurisdictions are increasingly willing to review the executive’s decisions to grant or refuse mercy (ie, decisions to grant or refuse a request for a pardon or remission of a sentence for a criminal offence). Here I want to sketch the developments and mention a few interesting differences and commonalities. I’ll focus on the Caribbean States and India, where most of the action has been.

First, a capsule history: English monarchs since medieval times have had a prerogative power of mercy. That power was never abolished, and the Queen still wields it today, on the advice of her ministers. Countries that Britain once ruled – India, Jamaica, Barbados, etc. – tended to include, or have included for them, a power of mercy in their governing arrangements. For example, article 72 of the Indian Constitution gives the President the power to show mercy for offences against the Union and in death penalty cases.

In the past, judges in Commonwealth jurisdictions tended to be unwilling to review mercy decisions. This was due, in part, to a general unwillingness to review exercises of prerogative powers. But I think it is fair to say that the nature of mercy decisions also gave judges pause.

Judges are supposed to be in the business of justice, after all, and mercy is said to be by nature contrary to justice. Also, mercy is thought to have a gift-like character, and gifts cannot be extracted, including by law. (Here I am skirting the edge of some philosophical puzzles about mercy. For the curious, I recommend Jeffrie Murphy’s ‘Mercy and Legal Justice’.)

This traditional unwillingness was on display in two decisions of the Judicial Committee of the Privy Council, which was (and in some cases remains) the final court of appeal for many Commonwealth countries. In 1976 the JCPC rejected a challenge to a refusal to show mercy in de Freitas v Benny, a case originating in Trinidad and Tobago. Lord Diplock, in a now infamous passage, said that ‘[m]ercy is not the subject of legal rights. It begins where legal rights end.’ A person ‘has no legal right even to have his case considered … in connection with the exercise of the prerogative of mercy’. Twenty years after de Freitas, in Reckley v Minister of Public Safety (No 1), the JCPC confirmed its earlier approach, and held in particular that there was no right to a fair hearing in mercy decisions.

Five years later, however, in a reversal that still seems stunning today, the JCPC overruled both Reckley and de Freitas in Lewis v Attorney General of Jamaica. As inde Freitas and Reckley, the applicant in Lewis had been prevented from responding to the material placed before the head of state, and from making other representations. In this case, however, the JCPC held that the applicant’s rights to a fair hearing were violated, and that the refusal of mercy was invalid as a result. (The Caribbean Court of Justice, while not bound by Lewis, chose to follow that decision in Attorney General v Boyce, where it ruled that the mercy power under the Constitution of Barbados is subject to the demands of procedural fairness.)

Long before the JCPC reversed itself in Lewis, the Supreme Court of India had held that mercy decisions are subject to judicial review. The landmark case here is Maru Ram v Union of India (1981), where the Court said that, while mercy is a wide power, ‘no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course.’ In the 2006 case of Epuru Sudhakar v Government of Andhra Pradesh, the Supreme Court reviewed its previous case law, and said that mercy decisions cannot be arbitrary, mala fide, based on irrelevant factors, or not based on relevant factors. A notable absence from this list is any requirement to provide a fair hearing (on this point, see Kehar Singh v Union of India).

Other Commonwealth jurisdictions are now following suit. For example, the Constitutional Court of South Africa held in 2010 that mercy decisions were subject to a kind of rationality review (Albutt v Centre for the Study of Violence and Reconciliation). The Court of Appeal in Singapore held in 2011 that mercy decisions were reviewable for bias (Yong Vui Kong v Attorney General). In several recent cases British courts have said that mercy decisions are reviewable for varieties of illegality and for irrationality (eg, in Dunn’s Application for Judicial Review and McGeough v Secretary of State for Northern Ireland).

Stepping back from the case law, several points stand out. First, judges in many Commonwealth jurisdictions have come to regard mercy decisions as essentially like other important executive decisions. The executive is not permitted to make most such decisions arbitrarily. Hence, judges reason, it ought not to be permitted to make mercy decisions arbitrarily.

Unfortunately, judges in these jurisdictions have tended to ignore mercy’s distinctive features. To give just one example, if (1) a constitution aims to give the head of state a power to show genuine mercy, but (2) genuine mercy cannot be demanded, and (3) one can demand that to which one has a legal right, then I wonder whether (4) the creation of a legal right to mercy makes genuine mercy by the head of state impossible, thereby frustrating the constitution’s aim.

Finally, although the broad trend towards reviewability is clear, there is a great deal of variation in the grounds of review. Based on my (admittedly selective) research and my (no doubt contentious) classification of the grounds of judicial review, we see something like the following:

  Irrationality Natural Justice (Hearing) Natural Justice (Bias) Illegality
India  
Britain    
Canada
Singapore      
Hong Kong      
Caribbean    
South Africa  
Guyana  

I am currently working on two projects about mercy, so if I have left out any Commonwealth jurisdictions in which mercy decisions are reviewable, please do let me know.

This post originally appeared on the blog of the International Journal of Constitutional Law here on 2 February 2015. 

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