Surely there has to be a better way?

In the Irish Times, Drapier: An insider’s guide to politics picks up on the proposals by the Irish government to use presidential pardons to deal with the issue of on-the-runs, a point we’ve highlighted here previously, and here too. Drapier, as an insider, says he “sensed a serious unease among colleagues as they finally grasped what we are about to do”. While Jim Duffy, also in the Irish Times, argues that “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 [of office]”From the Drapier column

One of the most striking aspects of the peace process in the last few years is the dogged way the Shinners have gone about looking after their own.

Bertie and Pat Rabbitte had a brief exchange about “on-the-runs” in the Dáil on Wednesday morning. The exchange was cordial enough, but Drapier sensed a serious unease among colleagues as they finally grasped what we are about to do.

The legislation to allow for the early release of prisoners went through the Dáil on the nod a few years back. There was no vote, but it is no secret that there were many members on all sides who swallowed very hard that day. But if the early-release scheme was difficult to swallow, then the OTR scheme is a lot worse.

Guys who committed awful crimes are to be given a pardon on a case-by-case basis. Drapier didn’t like the early-release stuff, but at least the victims or their families had the satisfaction of knowing that someone had been found guilty of a crime in court.

By granting a pardon to someone who has never been convicted, surely the State is condoning the crime that was done? It would be utterly bizarre if we did finally find out who planted the bombs in Dublin and Monaghan only to hand them a pardon to comfort them in their old age.

Surely there has to be a better way?

And, also in the Irish Times, Jim Duffy argues that to use presidential pardons in this way could be unconstitutional –

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.