Vanuatu Daily News Digest | Sue Farran on the Presidential PardonPosted: October 14, 2015
Sue Farran, Adjunct Professor of Law at USP Emalus, and an associate of the Centre for Pacific Studies at St Andrews University, was concerned at the action to pardon MPs last weekend. She forwarded a research note which she had quickly written and which Daily Post has published today.
It is also published here:
Understanding the Presidential Pardon – research
By Susan Farran
Article 38 confers on the President the power to ‘pardon, commute or reduce a sentence imposed on a person convicted or an offence’
The article goes on to add that ‘Parliament may provide for a committee to advise the President in the exercise of this function’.
Most usually presidential pardons are exercised around or at independence day for prisoners already serving sentences. In this the President is usually guided by recommendations from the prison service which look at things like gravity of the crime, length of sentence, good behaviour of the prisoner, personal circumstances such as health and hardship to family.
The President is not above the law. Although the idea of presidential power may stem from the prerogative powers of the monarch, Vanuatu is a Republic. The President does not exercise the powers as a sovereign. In the past decisions by the President have been subject to court challenge see eg Attorney-General of the Republic of Vanuatu  VUSC 2.
In terms of process clearly the President does not have to use a Parliamentary committee. However it has been ruled by the court that pardons granted under Article 38 are ‘orders’ under section 16 of Interpretation Act and must be published in the Gazette – failure to do so may render them invalid. The courts have also recognised guidelines for the exercise of the presidential pardon. These include: the convicted criminal’s good behaviour, family or health reasons, actions of remorse, fresh evidence, national reconciliation (for political crimes or offences) and for humanitarian reasons. While the grant of the pardon is discretionary it may be subject to review if the President takes into account matters which he should not take into account or fails to take into account matters which he should take into account or there is corruption of any sort.
This is not the first time that a President in Vanuatu has pardoned a member of parliament. There was a challenge to the pardon of Barak Sope MP in the case of Mautamate v Speaker of Parliament  VUSC, upheld in by the Court of Appeal in Sope Maautamate v Speaker of Parliament  VUCA 5. There the court held unequivocally that ‘under Article 38 the President has no power to pardon a conviction secured by the Court on a person for the commission of an offence. The presidential pardon cannot make a conviction a nullity. What the pardon does it to remove the penalty/sentence imposed by the court: ’ this distinguishes the prerogative of mercy from the prerogative of justice. The court went on to state that: it is beyond the presidential power under Article 38 (to pardon) not only the offences but also the conviction of the plaintiff. The Acting President therefore seems to have been a little too hasty in his pardons. There is nothing yet to pardon.
Under the Members of Parliament (Vacation of Seats) Act, which the court of Appeal has held is a valid act of parliament not in conflict with the Constitution and not overridden by the exercise of the President’s powers, section 3 provides that an MP convicted of an offence and sentenced to a term of imprisonment of not less than two years ceases to be an MP and must vacate his seat. Once an MP has lost his seat, a pardon cannot reinstate it (that MP can of course be re-elected through the usual democratic process). Whether the MP serves that sentence or not is irrelevant.
It is important therefore that the court in the current case proceed to sentence and that it is made clear that what is being pardoned (if there is a valid exercise of this power) is the serving of the sentence not the conviction. If the bribery charges of which these MPs are accused attract a punishment of at least two years then the Members of Parliament (Vacation of Seats) Act will apply. It is perhaps fortunate that Minister Carcasses has indicated such respect for the rule of law.