The Code of Hammurabi, dating back to the 18^th century BC and considered to be the oldest known legal code, contained the first mention of the power to pardon. Kings of England used the power to pardon, as a royal prerogative, to generate revenue. By selling pardons, armies of beholden pardon recipients could be raised and even a labour force created to be shipped off to the new world. It would appear that royal prerogatives were exercised by English monarchs for centuries in a mostly unfettered fashion.

Jowitts’ Dictionary of English Law states that the royal prerogatives are either direct or by way of exception. Those by way of exception exempt the Crown from some general rule binding on the rest of the community, whereas the direct prerogatives may be divided into three categories, viz. prerogatives relating to the royal character, the royal authority and the royal income. The royal prerogative to pardon convicted criminals resorts under the "royal authority" type of prerogative.

Some offences, however, cannot be pardoned in English law. The Habeas Corpus Act, 1679, for instance makes the offence of sending a subject to a foreign prison unpardonable by the Crown. In early times the operation of the royal prerogative of mercy was far wider than at present as it was not only extended to some persons who in later times would not be considered to have incurred any criminal responsibility, but was even extended to jurors who had been attainted for an oath that, though not false, was fatuous.

The brief yet controversial reign of King James II (1685 – 1688) brought the royal prerogatives under the spotlight. James’s most noteworthy constitutional misdemeanour was to obtain a judicial decision to the effect that he possessed the power to dispense with or suspend a legal provision. This particular prerogative was abolished during the reign of James’s joint successors, William of Orange and his wife Mary, but the royal prerogative of mercy, or the power to pardon, was not abolished and exists in Britain to this day.

According to Carpenter, a prerogative may be defined in broad terms as a discretionary power exercised by someone in a position of authority. The royal prerogatives in English law were originally discretionary powers exercised by the King, but because of the operation of convention, these powers are now exercised on the advice of the executive. A royal pardon is granted by warrant under the Great Seal, or under the Sign Manual in terms of the English Criminal Law Act, 1967, and is only granted upon the advice of the Home Secretary, who may take the opinion of the Court of Appeal on the matter. This state of affairs is confirmed by the authors Boulle, Harris and Hoexter who remark as follows:

A number of English law prerogatives found their way into South African law, but there are certain prerogatives which, according to our case law, are determined with reference to Roman-Dutch law. From the literature it appears, however, that the power to pardon is a remnant from the English royal prerogatives.

(i) Position under the South Africa Act, 1909

In terms of section 8 of the South Africa Act, 1909, the Executive Government of the Union of South Africa vested in the King, and was to be "administered by His Majesty in person or by a Governor-General as his representative". Section 9 of that Act made provision for the Governor-General to be appointed by the King, and to exercise in the Union during the King's pleasure such powers and functions of the King as "His Majesty may be pleased to assign to him". Section 12 of the above Act provided for the establishment of an Executive Council "to advise the Governor-General in the government of the Union" whilst section 14 provided for the appointment of officers to administer Departments of State of the Union. These officers were members of the Executive Council and were the "King's Ministers of State for the Union".

Section 8 of the South Africa Act, 1909, was repealed by section 11(1) of the Status of the Union Act, 1934 (Act 69 of 1934). Furthermore, section 4(1) of the latter Act provided that the Executive Government of the Union in regard to any aspect of its domestic or external affairs "is vested in the King, acting on the advice of His Ministers of State for the Union, and may be administered by His Majesty in person or by a Governor-General as his representative". The effect of this provision was that the King had to exercise his executive powers either personally or through the Governor-General on the advice of his Union Ministers (the Cabinet), and not on the advice of the British Cabinet. (Until the passing of the Statute of Westminster in 1931 the King was not bound, in exercising his executive powers in respect of the Union, to act on the advice of his Union Ministers, but could take the advice of his British Ministers.)

Although the South Africa Act, 1909, contained no direct reference to prerogatives, most of the royal prerogatives possessed by the monarch in respect of his British subjects were imported to the Union. The King exercised these prerogatives either personally or through the Governor-General. However, there is no clear indication whether the royal prerogative to pardon was specifically assigned to the Governor-General. Carpenter, in her discussion of prerogatives in the South African law under the Republic of South Africa Constitution Act, 1961 (Act 32 of 1961), creates the impression that the royal prerogative to pardon was indeed assigned to the Governor-General when she remarks as follows:

Carpenter further points out that all the powers that were conferred on the Executive Council were exercised by the Cabinet (consisting of serving Ministers), the Cabinet being the most important of the executive organs of the Union. The Governor-General exercised most of his executive powers on the advice of the Cabinet. Again it is not clear whether the power to pardon, if that power was conferred on the Governor-General, was exercised on the advice of the Cabinet.

(ii) Position under the 1961 Constitution

Any doubt as to whether South Africa’s first State President inherited any of the royal prerogatives was removed by section 7(4) of the Republic of South Africa Constitution Act, 1961 (Act 32 of 1961), which provided explicitly that the State President would possess the same powers as those possessed by the Queen by way of prerogative immediately before 31 May 1961. In this regard section 7(4) provided as follows:

This provision simultaneously made it clear that the power to pardon as introduced in South African law derives from the English (as opposed to Roman-Dutch) royal prerogative, as there is no doubt that the royal prerogative to pardon is alive in English law today. Apart from this general provision (section 7(4)), section 7(3) of the 1961 Constitution conferred a number of powers, which were typical royal prerogatives, on the State President as successor in law to the Queen. Those powers included, among others, the power to "pardon or reprieve offenders, either unconditionally or subject to such conditions as he may deem fit, and to remit any fines, penalties or forfeitures".

In terms of section 16(1) of the 1961 Constitution the executive government of the Republic in regard to any aspect of its domestic or foreign affairs vested in the State President acting on the advice of the Executive Council, which consisted of serving Cabinet Ministers. The 1961 Constitution also distinguished between the powers that the State President exercised on the advice of the Executive Council and those powers not so exercised. The powers that the State President exercised on the advice of the Executive Council were those which were essentially of an executive rather than a legislative nature. However, there were certain powers of an executive nature that were, for logical reasons, not exercised on the advice of the Executive Council, for example the power to appoint Ministers to administer State Departments. According to Boulle, Harris and Hoexter South Africa had, in terms of the 1961 Constitution, a purely titular State President who usually exercised his prerogatives on the advice of the Cabinet. In Boesak v Minister of Home Affairs and Another, a case which dealt with the prerogative to issue and revoke passports, Friedman J summarised the position under the 1961 Constitution as follows:

Basson and Viljoen express the view that the State President under the 1961 Constitution was a "constitutional head of state without any real executive power" and therefore he could only act "on the advice of the Executive Council (Cabinet) with regard to executive actions". According to Carpenter the executive powers that the State President exercised on the advice of the Executive Council included, among others, the power to pardon offenders.

(iii) Position under the 1983 Constitution

A similar provision to section 7(4) of the 1961 Constitution was included in the Republic of South Africa Constitution Act, 1983 (Act 110 of 1983), in the form of section 6(4) which provided as follows:

Since the (former) State President, in terms of section 7(4) of the 1961 Constitution, could exercise those prerogatives possessed by the Queen of England, section 6(4) of the 1983 Constitution conferred the exact same prerogatives upon the (new) State President. In addition, section 6(3) of the 1983 Constitution, like section 7(3) of the 1961 Constitution, conferred a number of powers on the State President which included, among others, the power to "pardon or reprieve offenders, either unconditionally or subject to such conditions as he may deem fit, and to remit any fines, penalties or forfeitures". The fact that these powers have been mentioned in a statute does not, according to Carpenter, "deprive them of their common law status: they are not changed into statutory powers and the common law determines the way in which they must be exercised".

The 1983 Constitution drew a distinction between "own affairs" and "general affairs". Section 14(1) defined own affairs as "matters which specifically or differentially affect a population group in relation to the maintenance of its identity, and the upholding and furtherance of its way of life, culture, traditions and customs". Section 14(2) provided that the matters listed in Schedule 1 to the Constitution were own affairs. In terms of section 15 all matters that were not own affairs of a population group in terms of section 14 were general affairs.

Section 19(1) of the 1983 Constitution provided as follows:

According to Booysen and Van Wyk prerogative powers are not mentioned as own affairs in Schedule 1 to the 1983 Constitution and they must therefore be regarded primarily as general affairs, although they could conceivably be construed as own affairs in exceptional circumstances. In this regard Carpenter remarks as follows:

The nature of the State President's prerogative powers was elucidated by the Court in the Boesak-case. In this case Friedman J distinguished between the prerogative powers exercised by the State President in terms of section 6(4) of the 1983 Constitution and those relating to general affairs which have to be exercised in terms of section 19(1)(b). According to Friedman J the 1983 Constitution differentiates between the powers "vested in the State President by section 6 ….. and those vested in him by section 19 and these powers are exercised in different ways, depending on whether the power is one falling within the terms of section 6(4) or is one falling within the terms of section 19(1)(a) or section 19(1)(b)". Regarding the view expressed by Booysen and Van Wyk, namely that prerogative powers must be regarded primarily as general affairs, Friedman J held as follows:

Basson and Viljoen summarise the position as follows:

(iv) Position under the interim Constitution

A departure was made from mentioning the term "royal prerogative" in the Constitution of the Republic of South Africa, 1993 (Act 200 of 1993) (known as the "interim Constitution"). Those powers of the President which originated from the royal prerogatives were listed in section 82(1) of the interim Constitution, and the power to "pardon or reprieve offenders, either unconditionally or subject to such conditions as [the President] may deem fit, and to remit any fines, penalties or forfeitures" was listed specifically in section 82(1)(k). This lead Justice Goldstone in the Constitutional Court decision in President of the Republic of South Africa v Hugo to conclude that there were no powers derived from the royal prerogative which were conferred upon the President other than those enumerated in section 82(1), and that these powers, flowing directly from the interim Constitution itself, did not derive their authority from, and that they were not dependent upon, legislative enactment. Even before the judgment in the Hugo-case, Basson already made the following remarks regarding the powers and functions of the President that are listed in section 82(1) of the interim Constitution:

The interim Constitution therefore translated the royal prerogatives into "statutory" or "enacted" prerogatives, that is, ordinary statutory powers, regardless of their genesis. In this regard the Constitutional Court, in its certification judgment, held as follows in relation to the President’s power to pardon:

Section 82(3) of the interim Constitution provided as follows:

The effect of this provision was that the President was not obliged to exercise, among others, the power to pardon or reprieve offenders "in consultation with the Cabinet". However, it is important to note that section 82(2) of the interim Constitution provided that the President "shall consult" the Executive Deputy Presidents before exercising certain of the powers, among others, the power to pardon or reprieve offenders, listed in section 82(1). Basson expresses the view that "shall consult" did not require the concurrence or consensus of the functionaries concerned, namely the President and the Executive Deputy Presidents. According to Basson the President merely had a duty to consult with the Executive Deputy Presidents before exercising the powers and functions listed in section 82(2) of the interim Constitution and then, after having complied with that duty, the President took the final decision in the exercise of those powers and functions alone.

(v) Position under the present Constitution

In terms of section 83(a) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996) (the "present Constitution"), the President is the "Head of State and head of the national executive". Section 84(2) of the present Constitution, which contains a list of powers conferred on the President, provides that the President is responsible for, among others, "pardoning and reprieving offenders and remitting any fines, penalties or forfeitures". In President of the Republic of South Africa and Others v South African Rugby Football Union and Others (the SARFU-case) the Constitutional Court held as follows in respect of the powers mentioned in section 84(2):

Item 9(2) of Schedule 6 to the present Constitution, read with clause 1 of Annexure B to Schedule 6, provides that until 30 April 1999 (when the provisions relating to the government of national unity expired), the President must consult the Executive Deputy Presidents before he or she exercises certain powers, including "pardoning or reprieving offenders". However, apart from these provisions, the present Constitution does not oblige the President, as did the interim Constitution, to consult any person before exercising any of the powers mentioned in section 84(2). In this regard the Constitutional Court in the SARFU-case remarked as follows:

According to Currie and De Waal the reason why the President is solely responsible for the head of state powers is that section 84(2) provides that the "President" is responsible for the list of powers provided for in that section".

In terms of section 85 of the present Constitution the executive authority of the Republic is vested in the President who must exercise that authority "together with the other members of the Cabinet" by, among others, developing and implementing national policy, preparing and initiating legislation and performing any other executive function provided for in the Constitution or in national legislation.

Currie and De Waal summarise the distinction between the powers exercised by the President as head of state (section 84(2)) and the powers exercised by the President as head of the national executive (section 85(2)) as follows:

Consequently, the President can exercise the powers of the head of state, including the power to pardon, entirely on his or her own but, as a consequence, would be individually accountable to Parliament.

According to Devenish an analysis of the powers and functions of the President indicates that they could be divided into three categories, namely "first, those where the President exercises personal statutory competency; second and third respectively, those involving consultative powers, that is, those done 'in consultation with' other functionaries and those done 'after consultation with' other functionaries". Devenish expresses the view that the President's powers listed in section 84(2) fall into the first category.

The power to pardon has, however, been found to be reviewable as is evident from the Hugo-case. Although that judgment concerned the interim Constitution, section 239 of the present Constitution now confirms the conclusion reached by the Constitutional Court. This section provides that the exercise of a power or the performance of a function in terms of the Constitution amounts to conduct of an organ of state, and the Bill of Rights, in terms of section 8(1), binds all organs of state. In addition, the Constitutional Court made it clear in the Hugo-case that the finding of reviewability may be different when a court is asked to review the exercise of the pardon power in individual cases (Hugo’s case involved a general pardon to remit the sentences of a whole group of prisoners). In this regard the Court stated as follows:

Currie and De Waal consider these remarks by the Constitutional Court to have a dampening effect on the Constitutional Court’s readiness to review the exercise of the presidential power to pardon. In the authors’ view the drafters of the Constitution should have considered including an appropriate check on this power, such as a requirement that the granting of pardon must be confirmed by Parliament or another, independent, institution. They submit that in the absence of such a requirement, the courts should narrowly construe the pardon power to prevent it from being abused.

The power of the President to pardon offenders is, in principle, only exercised in highly exceptional cases. A more relaxed approach in this regard will bring the administration of justice into disrepute. Over the years the following general policy with regard to applications for pardon to clear criminal records has been developed:

Although it is conceded that this approach may be criticized, it is submitted that this approach is the most productive process. It has a built-in safety mechanism in the sense that the President will consider all requests where the applicant is dissatisfied with the Department's or Minister's recommendation that a pardon not be granted.

In view of the present crime situation, a very strict policy is applied. Each application is considered on its own merit by applying the said policy. When considering an application for pardon certain factors are taken into account:

• the age of the offender at the time of the commission of the offence;

• the circumstances surrounding the commission of the offence;

• the interest of the State and the community.

Pardon is usually granted in respect of less serious offences. When an application for pardon in respect of a more serious offence is received, the matter is submitted to the relevant Director of Public Prosecutions for his or her comment and the relevant case records, if still available, are studied before a recommendation is made.

Statistics relating to the number of offenders that have—

(b) received pardon from that President,

are contained in the table hereunder.

1. It appears that in some countries the constitutional provisions regulating the power to pardon is open-ended and place no limitations on, or attach any requirements to, the exercise of that power. The following are some of those countries that have been identified:

In terms of section 92 of the Constitution of Albania, the President exercises the right of pardon according to the law. Section 93 provides that the President must, in the exercise of his powers, issue decrees.

Section 98 of the Constitution of Bulgaria provides that the President exercises the right to pardon.

In terms of section 102(1) of the Constitution of Slovakia the President has the power to "grant pardons and amnesty, mitigate sentences imposed by criminal courts, decrees to terminate or not to commence proceedings and to erase criminal records". Section 102(2) provides that a decision of the President to grant amnesty is only valid if it is signed by the Prime Minister or the appropriate/competent Minister. In these cases the Government of the Slovak Republic is responsible for the President's decision. Section 121 of the Constitution provides that the Government has the power to grant pardons in matters of administrative infrigements.

In terms of section 96 of the Constitution of Yugoslavia the President grants pardons for federal statutory criminal offences.

This does not necessarily mean that the mentioned countries do not have other domestic laws that regulate the power to pardon in more detail. In this regard it should be mentioned that in many instances no English version of the domestic laws of countries could be found on the Internet. Consequently, it was not possible to determine whether domestic laws regulating the power to pardon exist in those countries. Furthermore, no English version of the Constitution of some countries could be found and therefore it is difficult to determine the procedure relating to the power to pardon that applies in those countries.

2. The position in countries where the constitutional provisions regulating the power to pardon provide for some kind of a consultative process (whether obligatory or discretionary) to precede the exercise of that power or place some kind of a limitation on the exercise of that power as well as countries in respect of which we were able to obtain additional information relating to the exercise of the power to pardon, is discussed hereunder:

Article II, Section 2, Clause 1 of the Constitution of the United States of America gives the President the power to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment". The Article II provision of federal executive clemency powers is surprisingly broad. The Constitution itself offers no guidance on how the President's pardon power is to be administered. Pardons were issued from the time of President Washington, but routine responsibility for supervising their issuance was not vested in any particular Government official, apart from the President. In 1865, however, the office of Pardon Clerk was established. That office eventually became the Office of the Pardon Attorney.

Louis Fisher made the following remarks regarding the exercise of the pardon power by the President:

General regulations regarding the submission, consideration and award of pardons are set out in sections 1.1 to 1.10 of Title 28 of the US Code of Federal Regulations. The regulations, among others, allow for investigation of the petitioner by the Federal Bureau of Investigation (FBI) before a pardon is recommended, and give the Pardon Attorney the power to review the completed pardon application and recommend action to the President. The President retains the right to grant or deny the pardon request. It is important to note that the Title 28 regulations are merely "advisory and for the internal guidance of the Department of Justice personnel". Given his or her constitutional authority under Article II, the President does not have to follow them, and indeed Presidents, for various reasons, have gone outside them at various historical junctures.

The Pardon Attorney assists the President in the exercise of his or her pardon power under the Constitution. The Pardon Attorney receives and reviews all petitions for executive clemency (which includes pardon after completion of sentence, commutation of sentence, remission of fine and reprieve), initiates and directs the necessary investigations, and prepares a report and recommendation for submission to the President in every case. In this regard see the explanation by the Pardon Attorney, Mr RC Adams, to the Committee on the Judiciary, United States Senate, on how the Office of the Pardon Attorney normally handles clemency petitions (Annexure "A"). In addition, the Office of the Pardon Attorney, among others, acts as a liaison with the public during the pendency of a clemency petition. The following sets forth guidance on clemency matters.

■ Role of the United States Attorney in clemency matters

The Pardon Attorney routinely requests the United States Attorney (the U.S. Attorney) in the district in which the petitioner was convicted to provide comments and recommendations on clemency cases that appear to have some merit, as well as on cases that raise issues of fact about which the U.S. Attorney may be in a position to provide information. In addition, in cases in which the petitioner seeks clemency based on cooperation with the Government, the Pardon Attorney may solicit the views of the U.S. Attorney in the district in which the petitioner cooperated, if different from the district in which he or she was convicted. The U.S. Attorney's prosecutive perspective lends valuable insights to the clemency process.

The U.S. Attorney can contribute significantly to the clemency process by providing factual information and perspectives about the offence of conviction that may not be reflected in the pre-sentence or background investigation reports or other sources. On occasion, the Pardon Attorney requests information from prosecution records that may not be readily available from other sources. In cases involving pardon after completion of sentence, the U.S. Attorney is expected to comment on the petitioner's post-conviction rehabilitation, particularly any actions that may evidence a desire to atone for the offence, in light of the standards generally applicable in pardon cases. The Pardon Attorney also routinely requests the U.S. Attorney to solicit the views and recommendation of the sentencing judge. However, if the U.S. Attorney does not wish to contact the sentencing judge, the Pardon Attorney may solicit that judge's views directly.

The U.S. Attorney may support, oppose or take no position on a pardon request. The views of the U.S. Attorney are given considerable weight in determining what recommendations the Department of Justice should make to the President. Each petition is presented for action to the President with a report and recommendation from that Department. The recommendation by the U.S. Attorney is included in that report.

■ Standards for considering pardon petitions

In general, a pardon is granted on the basis of the petitioner's demonstrated good conduct for a substantial period of time after conviction and service of sentence. In terms of the regulations of the Department of Justice a petitioner is required to wait a period of at least five years after conviction or release from confinement (whichever is later) before filing a pardon application. In determining whether a particular petitioner should be recommended for a pardon, the following are the principal factors taken into account:

■ Standards for considering commutation petitions

A commutation of sentence reduces the period of incarceration. However, it does not imply forgiveness of the underlying offence, but simply remits a portion of the punishment. It has no effect upon the underlying conviction and does not necessarily reflect upon the fairness of the sentence originally imposed. Requests for commutation generally are not accepted—

* unless and until a person has begun serving his or her sentence; and

Generally, commutation of sentence is an extraordinary remedy that is rarely granted. Appropriate grounds for considering commutation have traditionally included disparity or undue severity of sentence, critical illness or old age. The amount of time already served and the availability of other remedies (such as parole) are taken into account in deciding whether to recommend clemency.

The President may commute a sentence to time served or he or she may reduce a sentence. Commutation may be granted upon conditions similar to those imposed pursuant to parole or supervised release.

Upon receipt of a petition for executive clemency, the Attorney General causes such investigation to be conducted in respect of the matter as he or she may deem necessary and appropriate, using the services of, or obtaining reports from, appropriate officials and agencies of the Government, including the FBI. When a person requests clemency (in the form of either a commutation of a sentence or a pardon after serving a sentence) for a conviction of a felony offence for which there was a victim, and the Attorney General concludes from the information developed in the clemency case that investigation of the clemency case warrants contacting the victim, the Attorney General must cause reasonable effort to be made to notify the victim—

* that a clemency petition has been filed;

* that the victim may submit comments regarding clemency; and

* whether the clemency request ultimately is granted or denied by the President.

In determining whether contacting the victim is warranted, the Attorney General must consider the seriousness and recency of the offence, the nature and extent of the harm to the victim, the defendant's overall criminal history and history of violent behavior and the likelihood that clemency could be recommended in the case. ("Victim" means an individual who has suffered direct or threatened physical, emotional or pecuniary harm as a result of the commission of the offence for which clemency is sought.)

The Attorney General must review each petition and all pertinent information developed by the investigation and must determine whether the request for clemency is of sufficient merit to warrant favourable action by the President. The Attorney General must report his or her recommendation in writing to the President, stating whether in his or her judgment the President should grant or deny the petition.

■ Notification of grant or denial of clemency

When a petition for pardon or commutation of sentence is granted, the petitioner must be notified of such action. Whenever the President notifies the Attorney General that he or she has denied a request for clemency, the Attorney General advises the petitioner accordingly and closes the case. Except in cases in which a sentence of death has been imposed, whenever the Attorney General recommends that the President deny a request for clemency and the President does not disapprove or take other action relating to that adverse recommendation within 30 days after the date of its submission to him or her, it is presumed that the President concurs in that adverse recommendation of the Attorney General, and the Attorney General advises the petitioner accordingly and closes the case.

In every state of America a person or some non-judicial body has the power to pardon, parole or reduce criminal sentences. In over half of those states the Governor can grant such clemency with few restrictions. Several states restrict Governors’ clemency powers. In others the clemency power is given to a pardons board or other body rather than the Governor.

Some states (e.g. Massachusetts and Pennsylvania) allow their Governors to grant clemency only if recommended by a pardons board or similar body. California requires a recommendation by its Supreme Court for the pardon of any person convicted of two felonies. Two states require approval of any act of clemency by an elected advisory body to the Governor. Several states (e.g. Connecticut, Minnesota and South Carolina) vest the power of clemency in most or all cases in a non-judicial body such as a pardons board (which includes the Governor in some of those states). Rhode Island gives its Senate a veto over any exercise by the Governor of the "pardoning power".

Two other kinds of clemency provisions are significant. Some states (e.g. Arizona, Arkansas, Louisiana, Maine, Maryland and Minnesota) require that, before any act of clemency, notice be given either to the general public or to the prosecutor, judge and victim or victim’s survivors. Several states (e.g. Arizona, Colorado, Delaware, Indiana, Maryland and Michigan) require their Governors to report acts of clemency to the legislature, some of which further require that the reports give reasons for such acts.

Although the Governors of the majority of the American states have the power to grant reprieves, commutations of sentence and pardons, it appears from the information obtained that commutation of sentence is the form of executive clemency that is mainly granted in those states. It is also important to note that in the majority of those states certain criteria have been laid down with which a person must comply before an application for executive clemency will be considered or before such clemency will be granted, for example—

However, in certain states the Governor may grant a waiver of these criteria, for example in cases involving medical emergency.

A pardon allows people who were convicted of a criminal offence, but have completed their sentence and demonstrated they are law-abiding citizens, to have their criminal record kept separate and apart from other criminal records. Under the Criminal Records Act (the CRA), the National Parole Board (the Board) may issue, grant, deny or revoke pardons for convictions under federal acts or regulations of Canada. A pardon that is granted is evidence that the conviction should no longer reflect negatively on a person's character.

A person may apply for a pardon—

* even if he or she is not a Canadian citizen or a resident of Canada; and

Before a person is eligible to apply for a pardon, he or she must have—

* completed all sentences; and

• three years for summary convictions; and

• five years for indictable offences.

Subsection 4.1(1) of the CRA gives the Board the authority to make a discretionary decision to grant pardons for offences prosecuted by indictment if it is satisfied that the applicant is of good conduct and is conviction-free for a period of five years. For purposes of the CRA, "good conduct" is defined as a conviction-free period, with no suspicion or allegation of criminal behaviour. In terms of subsection 4.1(2) of the CRA the Board is required to grant pardons for offences punishable on summary convictions following a conviction-free period of three years.

Section 7 of the CRA gives the Board the authority to revoke a pardon that has been granted if the person who was granted the pardon is subsequently convicted of an offence punishable on summary conviction. A pardon may also be revoked when there is evidence establishing that the applicant is no longer of good conduct or that he or she knowingly made a false or deceptive statement or concealed material information relating to the application. Section 7.2 of the CRA provides for cessation of a pardon for, among others, a new conviction under an Act or regulation of Parliament for an offence prosecuted by indictment.

The CRA also provides for removal of discharges from the automated Canadian Police Information Centre system (CPIC). This occurs after one year for absolute discharges and three years for conditional discharges. It also prohibits the disclosure of the fact of the discharge by federal agencies and departments unless the Solicitor General authorises the disclosure.

The Board will grant a pardon in respect of indictable offences where no negative information has been received from law enforcement agencies about suspected or alleged criminal behaviour on the part of the applicant since the last conviction or sentence. Where the Board has received information from law enforcement agencies about suspected or alleged criminal behaviour on the part of the applicant since the last conviction or sentence, it will assess the information and determine whether the pardon should be granted or denied. A pardon will be granted in respect of summary convictions where the conviction-free period criterion has been met.

A pardon may be revoked by the Board—

If the Board proposes either to refuse to grant or to revoke a pardon, the review will not proceed for at least 60 days following notification to the applicant, unless representations are received at an earlier date. The Board may conduct a review by way of a hearing, if the Vice-Chairperson, Appeal Division, believes it is desirable to do so based on an assessment of any relevant factor, including, for example—

The decisions of the Board under the CRA are final. No new application will be considered until one year has elapsed since the last decision.

(ii) Royal Prerogative of Mercy

The Royal Prerogative of Mercy originates in the ancient power vested in the British monarch who had the absolute right to exercise mercy on any subject. In Canada, similar powers of executive clemency have been given to the Governor-General who, as the Queen's representative, may exercise the Royal Prerogative of Mercy. It is largely an unfettered discretionary power to apply exceptional remedies, under exceptional circumstances, to deserving cases. The power to exercise the Royal Prerogative of Mercy for federal offences is vested in the Governor-General of Canada by virtue of the Letters Patent, constituting that office. In practice, the Governor-General will grant an act of clemency only after receiving the advice of the Solicitor General of Canada, or that of at least one other Minister. The Governor-General may grant two types of pardons, namely free pardons and conditional pardons, and may also grant respites from the execution of a sentence ("respite" is the interruption of the execution of a sentence). In addition, sentences, as well as fines, penalties or forfeitures "due and payable to the Queen in right of Canada", may be remitted by the Governor-General.

Sections 748 and 748.1 of the Criminal Code authorise the Governor in Council to grant free or conditional pardons, and to order the remission of pecuniary penalties, fines and forfeitures imposed under an Act of Parliament. The exercise of these powers is considered by the Federal Cabinet on the advice of the Solicitor General of Canada, or that of at least one other Minister.

In practice, requests for executive clemency are processed under the Letters Patent constituting the Office of the Governor-General of Canada only when it is not legally possible to proceed under the Criminal Code. Therefore, with the exception of respites, relief from prohibitions and remissions of sentence, all positive recommendations are forwarded to the Federal Cabinet for a decision under the provisions of the Criminal Code, rather than to the Governor-General of Canada.

The Royal Prerogative of Mercy is exercised according to general principles that are meant to provide for a fair and equitable process, while ensuring that it is granted only in very exceptional and truly deserving cases. In reviewing clemency applications, conducting investigations and making recommendations, the Board is guided by the following principles:

* There must be evidence of substantial injustice or undue hardship.

* The independence of the judiciary must be respected.

In addition to the general principles that guide the Board in assessing the merits of clemency applications, each form of relief is assessed against some specific criteria, for example:

■ Free pardon

A "free pardon" is a formal recognition that a person was erroneously convicted of an offence. Any consequence resulting from the conviction, such as fines, prohibitions or forfeitures, will be cancelled upon the grant of a free pardon. In addition, any record of the conviction will be erased from the police and court records, and from any other official data banks. The sole criterion upon which an application for a free pardon may be entertained is that of the innocence of the convicted person. In order for a free pardon to be considered, the applicant must have exhausted all appeal mechanisms available under the Criminal Code, or other pertinent legislation. In addition, the applicant must provide new evidence, which was not available to the court at the time the applicant was convicted or at the time the appeal was processed, to clearly establish innocence. A free pardon may be granted by the Governor in Council and the Governor-General.

■ Conditional pardon prior to eligibility under the Corrections and Conditional Release Act

A "conditional pardon prior to eligibility under the Corrections and Conditional Release Act" (CCRA) is the release of an inmate from incarceration into the community, under supervision and subject to conditions, until the expiration of the sentence imposed by the court. In order for a conditional pardon to be granted prior to eligibility under the CCRA, the inmate must be ineligible for any other form of release under the CCRA, and the release should not, in any manner, put the community at risk of the offender's re-offending. In addition, there must exist substantial evidence of excessive inequity, substantial injustice or undue hardship which would be out of proportion to the nature and seriousness of the offence and the resulting consequences, and more severe than for other individuals in similar situations. The Governor in Council and the Governor-General may grant conditional pardon prior to eligibility under the CCRA.

■ Conditional pardon in advance of eligibility under the Criminal Records Act

A "conditional pardon in advance of eligibility under the Criminal Records Act" (CRA) has the same meaning and effect as a pardon granted under the provisions of the CRA. In order for a conditional pardon to be granted in advance of the eligibility under the CRA, the applicant must be currently ineligible for a pardon under the CRA. In addition, such a pardon may be considered only when there is evidence of good conduct, within the meaning of the CRA, and consistent with the policies of the Board in these matters. Finally, there must be substantial evidence of undue hardship, out of proportion to the nature of the offence and more severe than for other individuals in similar situations. Conditional pardon in advance of eligibility under the CRA may be granted by the Governor in Council and the Governor-General.

Other remedies that fall within the ambit of the Royal Prerogative of Mercy are remission of sentence; remission of fines, forfeitures, estreated bails and pecuniary penalties; respite and relief from prohibitions.

All the above remedies are subject to cancellation if the application was granted on the basis of information which is subsequently found to have been fraudulent. All remedies, with the exception of free pardons, may be cancelled if any condition under which they are granted is subsequently breached.

The right to request a pardon is guaranteed by the Constitution of the Russian Federation, the Criminal Code and the Criminal Law Executive Code. In terms of Article 50.3 of the Constitution "[a]nyone convicted of a crime shall have the right ….. to request a pardon or the commuting of a sentence". Article 71 of the Constitution provides that both amnesties and pardons fall under federal jurisdiction. In other words, issues of amnesty and pardons can be resolved only at the highest level of federal authority, specifically by the President.

The Criminal Code provides a detailed outline of the constitutional provision for pardons. Article 85 of the Code states that pardons are granted by the President to particular individuals. Through the pardons system an individual convicted of a crime can be granted an early release from prison (or other form of punishment) or a reduction or other commutation of his or her sentence. A pardon can also be used to technically remove a particular conviction from the criminal record of an individual serving his or her sentence. Article 113 of the Criminal Law Executive Code lays out certain incentives for prisoners. One of these is the opportunity to appeal for a pardon, which may be offered to prisoners who display good behavior.

The first Presidential Pardons Commission was established in the late 1980s. Its function was to consider petitions from prisoners and recommend whom the President should pardon or release in one of the periodic amnesties that heralded important public holidays. 1992 saw the appearance of a new breed of Commission when President Yeltsin appointed the first public body under the chairmanship of Anatolii Pristavkin. The most remarkable thing about this commission was that it courted public opinion. The Pardons Commission examined requests for a Presidential pardon from any prisoner, subject to a number of restrictions, and made recommendations to the head of state. Consisting of writers, actors, theatre directors, clerics and other public figures, it earned a reputation for defending liberal values in the often confused moral climate of post-Soviet society. It was also seen as a safeguard against a harsh penal system inherited from the communist era.

In terms of Presidential Decree No. 1500, issued on 28 December 2001 by President Putin, the Pardons Commission (which was regarded as one of the country's most liberal organisations) was dissolved and the establishment of Pardons Commissions in each of Russia's 89 regions under the direction of local Governors was ordered. It said Commissions were to consist of unpaid members "enjoying the respect of the community and having an impeccable reputation". Furthermore, Governors are to publish the names of prisoners seeking pardons from the head of state.

In terms of that Presidential Decree a pardon may be granted to individuals who have—

* served a sentence but whose conviction remains on record.

As a rule, pardons are not granted to convicts who have, among others—

* knowingly committed a crime while on parole;

* repeatedly violated prison rules or other regulations while serving their sentences;

* previously been released through amnesty; and

* previously received a pardon.

The Presidential Pardons Directorate is in charge of providing procedural instructions to the regional Pardons Commissions in Russia's constituent territories. That Directorate also drafts the President's decisions on pardons.

The 89 regional Pardons Commissions have, with the assistance of a staff of approximately 1200 members, during the first eleven months of 2002, processed a total of 6628 requests for clemency. Of these, 1117 were the subject of recommendations for clemency by the Pardons Commissions, leading to 182 favourable decisions by President Putin. It is noted that the new system is intended to enhance efficiency through decentralisation.

Article VII, Section 19 of the Constitution of the Republic of Philippines provides that the President may, except in cases of impeachment or as otherwise provided in that Constitution, grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment. The President also has the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

In terms of Article IX, Section 5 of the Constitution no pardon, amnesty, parole or suspension of sentence for violation of election laws, rules and regulations may be granted by the President without the favorable recommendation of the Commission on Elections.

Section 3 of Act No. 4103 of the Philippines (otherwise known as "The Indeterminate Sentence Law") provides for the establishment of a Board of Pardons and Parole (the Board) consisting of the Secretary of Justice (who is the chairperson) and four members (including a trained sociologist and a psychiatrist) to be appointed by the President. The Board is authorised to adopt such rules and regulations as may be necessary for carrying out its functions and duties.

Under the provisions of Act No. 4103 it is the function of the Board to uplift and redeem valuable human material to economic usefulness and to prevent unnecessary and excessive deprivation of personal liberty by way of parole or through executive clemency ("executive clemency" refers to reprieve, absolute pardon, conditional pardon, with or without parole conditions, and commutation of sentence as may be granted by the President ). In this regard the Board undertakes to—

Pursuant to the provisions of section 4 of Act No. 4103, the Board has during 2002 promulgated revised Rules and Regulations to govern its actions and proceedings. These Rules and Regulations are briefly summarized hereunder.

In terms of sections 3 and 4 of the Rules and Regulations the Board may—

A petition for absolute pardon must be accompanied by certain specified documents, for example affidavits of at least two responsible members of the community where the petitioner resides, stating that the petitioner has conducted himself or herself in a moral and law-abiding manner since his or her release from prison and must indicate the petitioner's occupation and his or her social activities. ("Absolute pardon" refers to the total extinction of the criminal liability of the individual to whom it is granted without any condition. It restores to the individual his or her civil and political rights and remits the penalty imposed for the particular offence of which he or she was convicted.) Upon receipt of a petition for absolute pardon, the Board refers the petition to a Probation and Parole Officer who conducts an investigation on the conduct and activities, as well as the social and economic conditions, of the petitioner prior to his or her conviction and since his or her release from prison and submits a report thereof. Provision is also made for the referral of a petition for executive clemency or parole to other Government Agencies for comment and recommendations.

A petition for executive clemency may be reviewed if the prisoner meets certain minimum requirements, for example if he or she, in the case of—

Any Board member or authorised government official may interview prisoners confined in prison or jail to determine whether they may be released on parole or recommended for executive clemency. However, before an interview, the Board may require a prisoner convicted of a heinous crime, as defined under the Republic Act No. 7659 and other special laws, to undergo psychological or psychiatric examination if the prisoner has a history of mental instability, or in any case, if the Board finds a need for such examination in the light of the nature of the offence committed or manner of its commission.

The Board must cause the publication in a newspaper of general circulation of the names of prisoners convicted of heinous crimes or those sentenced by final judgment to reclusion perpetua or life imprisonment, who may be considered for release on parole or for recommendation for absolute or conditional pardon. When an objection to a petition is filed, the Board may consider the objection by requesting the person objecting to provide evidence in support thereof. However, in no case will an objection disqualify the prisoner against whom it is filed from executive clemency or parole.

The Board, in deciding whether to recommend executive clemency or to grant parole, must consider all relevant documents, including the prison record of the prisoner, the prosecutor's information and trial or appellate court's decision of the case of the prisoner. Factors that may be considered by the Board in the grant of conditional pardon, commutation of sentence or parole include, among others—

* attitude towards the offence and the degree of remorse; and

The Board may recommend the cancellation of the pardon or cancel the grant of parole of a person if it finds that material information given by that person to the Board, either before or after release, was false or incomplete or that the person had willfully or maliciously concealed material information from the Board.

In terms of section 47(1) of the Constitution of Greece the President of the Republic of Greece has the right, pursuant to a recommendation by the Minister of Justice and after consulting with a council (Pardon Council) composed in its majority of judges, to grant pardons, to commute or reduce sentences imposed by the courts and to revoke all consequences at law of sentences imposed and served. Consequently, the Ministry of Justice has the responsibility to conduct the necessary administrative procedure for granting pardon. The President also has the right to grant pardon to a Minister convicted as provided in article 86, but only with the consent of Parliament.

Provision is further made that—

* amnesty for common crimes may not be granted even by law.

In terms of section 90(1) of the Constitution of the Bahamas the Governor-General may "in Her Majesty's name and on Her Majesty's behalf", among others, grant to any person convicted of any offence against the law of The Bahamas a pardon, either free or subjected to lawful conditions. The Governor-General must exercise these powers in accordance with the advice of a Minister designated by him or her, acting in accordance with the advice of the Prime Minister.

Section 91 of the Constitution provides for the establishment of an Advisory Committee on the Prerogative of Mercy (the Committee) which consists of the designated Minister (who is the chairperson), the Attorney-General and not less than three or more than five other members appointed by the Governor-General. The functions of the Committee are dealt with in section 92(1) and (2) which provides as follows:

The designated Minister is not obliged in any case to act in accordance with the advice of the Committee. Provision is also made that the Committee may regulate its own procedure.

In terms of section 87(1) of the Constitution of the Republic of Trinidad and Tobago the President may grant to any person a pardon, either free or subject to lawful conditions, in respect of any offences that he or she may have committed. Provision is further made that the President may exercise the power under subsection (1) either before or after the person is charged with any offence and before he or she is convicted thereof. Section 87(2) specifies certain powers of the President which include, among others, the power to—

The President may exercise these powers in accordance with the advice of a Minister designated by him or her, acting in accordance with the advice of the Prime Minister.

Provision is also made for the establishment of an Advisory Committee on the Power of Pardon (the Committee), consisting of the designated Minster (who is the chairperson), the Attorney General, the Director of Public Prosecutions and not more than four other members appointed by the President, after consultation with the Prime Minister and the Leader of the Opposition. Section 89(1) and (2) of the Constitution, which prescribes the functions of the Committee, provides as follows:

It is important to note that the designated Minister is not obliged, in any case, to act in accordance with the advice of the Committee. In terms of section 89(4) the Committee may regulate its own procedure.

Section 94(4)(b) of the Constitution provides that the Ombudsman may not investigate any action taken with respect to any matter described in the Third Schedule to the Constitution, which includes any "exercise of the power of pardon".

In terms of section 58(1) of the Constitution of Finland the "President of the Republic makes decisions in Government on the basis of proposals for decisions put forward by the Government". Section 58(3) specifies certain matters in respect of which the President makes decisions without a proposal for a decision from the Government which include, among others, "[p]residential pardons and other matters, as specifically laid down by Acts, concerning private individuals or matters not requiring consideration in a plenary meeting of the Government". In terms of section 105 of the Constitution the President may in individual cases, after having obtained a statement from the Supreme Court, grant full or partial pardon from a penalty or other criminal sanction imposed by a court of law. Provision is further made that a general amnesty may be provided only by an Act.

Only a sentence passed because of a criminal offence (fine, imprisonment, forfeiture) is pardonable. However, a sentence passed by the High Court of Impeachment is pardonable only if proposed by that Court. A pardon is possible only after all avenues of appeal in the court system have been exhausted. The law also allows for a pardon application to be made without the prior consent of the person to whom it applies, thus allowing for pardons of individuals no longer capable of making such a request. Furthermore, the President can not by pardon release from any obligation under public or civil law (e.g. taxes, child support payments or bank loans).

In practice a written application for pardon is addressed to the President. The petition is then submitted to the Ministry of Justice which processes the petition (which includes obtaining the necessary background information and opinions on the petition) and prepares the necessary documentation. An opinion from the Supreme Court is the formal requirement for pardoning. Once this process is completed, the Minister of Justice submits the petition to the President in the Presidential session of the Council of State. The actual granting of a pardon is made at a meeting of the Council of State in session, and is signed by the President. It is noteworthy that in 1995 there were 330 petitions for clemency, with 34 favourable decisions. Between 1995 and 1999 the number of annual applications fell steadily to reach 145, whilst the number of pardons granted remained relatively steady at around 30 per year.

In terms of Article 13.6 of the Constitution of Ireland the right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are vested in the President. Such power of commutation or remission may, however, also be conferred by law on other authorities.

Section 7(1) of the Criminal Procedure Act, 1993, of Ireland provides as follows:

In terms of section 8(1) of the Criminal Procedure Act, 1993, the Government may, for the purpose of enabling it to decide whether to advise the President to exercise the right of pardon conferred by Article 13.6 of the Constitution, establish a committee to inquire into any or all of the matters dealt with in a petition for the grant of a pardon by the President and to report whether, in the opinion of the committee, the President should be so advised. The person constituting the committee (or, where the committee consists of more than one member, its chairperson) must be either a judge or former judge or a practising barrister or solicitor of not less than ten years standing. Provision is further made that such a committee may receive such evidence and other information as it sees fit, whether or not that evidence or information is or would be admissible in a court of law.

In terms of section 5 of the Ombudsman Act, 1980, of Ireland, the Ombudsman may not investigate certain specified actions taken by or on behalf of a person which include, among others, an action "involving the exercise of the right or power referred to in Article 13.6 of the Constitution or the remission of any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction".

An increase in the number and complexity of applications for the exercise of the Royal Prerogative of Mercy over the last five years has prompted the Ministry of Justice in New Zealand to review its process for considering such applications. Additionally, some overseas jurisdictions have introduced new procedures to deal with such cases. This led to the preparation of a draft discussion paper on "The Royal Prerogative of Mercy: A Review of New Zealand Practice" by N Trendle, in consultation with the Ministry of Justice of New Zealand. The under-mentioned information in respect of New Zealand has been obtained from that draft discussion paper. It is, however, important to note that it is clearly indicated that the draft discussion paper does not constitute Government policy.

In New Zealand the Royal Prerogative of Mercy provides a manner for convicted persons to petition the Crown for relief in cases where an injustice may have occurred. It enables the Governor-General to provide a remedy to pardon a convicted offender, to remit or grant respite from the sentence imposed or to refer all or part of a case to the Court for further review. The Royal Prerogative of Mercy is exercised by the Governor-General by virtue of a delegation in the Letters Patent Constituting the Office of Governor-General. In terms of Article XI of that Letters Patent the Governor-General may exercise the prerogative of mercy by—

In terms of section 406 of the Crimes Act, 1961, of New Zealand, the Governor-General in Council may, when considering an application for the exercise of the prerogative of mercy—

A reference under section 406(a) has the effect that the Court hears and determines the matters raised as if it were dealing with an appeal. This results in the prerogative application being effectively determined by the Court. However, a reference under section 406(b) is designed to provide the Governor-General with the opinion of the Court on a point arising in the case. The prerogative application, informed by that opinion, is then determined by the Governor-General acting on ministerial advice.

The grant of a pardon is the exercise of the prerogative of mercy to extend clemency. Where a person convicted of an offence is granted a free pardon by Her Majesty, or by the Governor-General in the exercise of any powers vested in him or her in that behalf, that person is deemed never to have committed that offence.

The referral process under section 406 is intended to deal with possible miscarriages of justice. Most applications for the exercise of the prerogative of mercy in New Zealand seek relief under section 406 of the Crimes Act, 1961. Even in those cases where a pardon is sought, almost invariably the basis for the application is that a miscarriage of justice occurred.

In practice the Governor-General receives applications for the exercise of the prerogative of mercy in the first instance and refers them to the Minister of Justice for consideration. If the Minister of Justice recommends either the granting of a pardon, or referring the case to the Court under section 406 of the Crimes Act, 1961, then the advice to the Governor-General is accompanied by an Order in Council. Upon acceptance of the advice by the Governor-General, the matter is formalised at a subsequent meeting of the Executive Council with the Governor-General signing the Order in Council.

The exercise of the prerogative of mercy is not conducive to the rigid application of precisely defined criteria. Legal advisers at the Ministry of Justice analyse and consider all applications for the exercise of the prerogative of mercy. When considering applications for a free pardon, the legal advisers consider firstly, whether the applicant has exhausted all other remedies and secondly, they look for compelling evidence that the petitioner was not properly convicted, that no reasonable jury apprised of all the relevant evidence could have found the petitioner guilty. In some complex cases it is usually necessary to obtain the relevant court file and to seek further information from the applicant. Occasionally the advisers will seek the police investigation file or will obtain specialist legal or non-legal advice from, for example an independent barrister or a forensic scientist. In some cases it is appropriate to request the Police to interview or reinterview a witness, or to retain an independent barrister to interview witnesses or to provide advice. In the more complex cases more than one legal adviser may be asked to assist with reviewing an application. Increasingly in these cases, a retired judge may also be requested to consider the application and provide a report, or review the Ministry’s analysis of the case. After completion of the review of an application the legal adviser responsible for reviewing the application prepares a draft memorandum containing the recommendation to the Minister of Justice. The recommendation and the memorandum are critically peer reviewed and then signed off by the Ministry’s Chief Legal Counsel before it is forwarded to the Office of the Minister.

Since 1996, 63 applications for the exercise of the prerogative of mercy were received. As at 30 June 2002, a decision had been made in 47 applications. Of those, 7 resulted in a reference to the Court in terms of section 406 of the Crimes Act, 1961, the terms of reference of an existing reference were widened in one case, and a Ministerial inquiry held in another. No pardons were granted, and 38 applications were declined. As at 30 June 2002, 16 applications were still under consideration.

Issues relating to, among others—

* the role of the Minister of Justice;

* work practice issues, particularly regarding investigations and inquiries; and

* the transparency of the Ministry's process,

are discussed in the draft discussion paper.

In the draft discussion paper the Ministry of Justice seeks views and comments on the above issues as well as various other issues, including—

* the options proposed in the paper, namely—

At the time of drafting this document the outcome of the review was unknown.

In terms of section 60(2) of the Basic Law for the Federal Republic of Germany (Grundgesetz), the Federal President has the power to pardon individual offenders on behalf of the Federation. Provision is further made that he or she may delegate that power to other authorities. Section 452 of the Criminal Procedure Code of Germany (Strafprozeßordnung) provides that the power to pardon is vested in the Federation in cases at first instance in the exercise of jurisdiction by the Federation and is vested in the Laender in all other cases.

The position in Germany is summarised as follows:

Section 1 of the Constitution of Hong Kong provides that the Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China. In terms of section 48(11) of the Constitution, the Chief Executive of the Hong Kong Special Administrative Region has the power to pardon persons convicted of criminal offences or to commute their penalties. In terms of item 3 of Schedule 2 to the Ombudsman Ordinance of Hong Kong, any exercise by the Chief Executive of his or her power to pardon persons convicted of criminal offences or to commute their penalties will not be subject to any investigation.

In terms of section 115 of the Criminal Procedure Ordinance of Hong Kong a magistrate or a court may, with the written consent of the Secretary for Justice, order that a pardon be granted to a person accused of, or committed for trial for, any indictable offence on condition that such person gives full and true evidence at any preliminary inquiry or trial. Provision is further made that such order will have effect as a pardon by the Chief Executive, but that it may be withdrawn by the magistrate or court on proof that such person has withheld evidence or has given false evidence. Section 116 of the Criminal Procedure Ordinance provides that in every case where a free or conditional pardon is granted to any person—

* the discharge of the offender in the case of a free pardon; and

* the performance of the condition in a conditional pardon,

will have the same effect as a pardon has in the like cases under the public seal.

Section 118 of that Ordinance provides that, subject to the previous provisions, nothing in that Ordinance will affect the power of the Chief Executive to pardon offences or to commute penalties.

In terms of section 122 of the Constitution of the Netherlands remission of sentence will be granted by Royal Decree—

* upon the recommendation of a court designated by an Act of Parliament; and

Section 122 further provides that pardons will be granted by or pursuant to an Act of Parliament.

The 1998 Pardon Act, which was amended in 2002, empowers the Queen to grant pardon on a petition addressed to the Queen by the person sentenced or by the prosecution service. Under section 122 of the Constitution and the provisions of the Pardon Act, pardon may be granted for all prison sentences and for certain fines, as well as for certain measures imposed by Dutch courts. Furthermore, pardon may be granted for all sentences imposed by foreign courts but implemented in the Netherlands, provided that the foreign sentence is converted into a Dutch sentence or the prisoner is transferred to the Netherlands on the basis of a treaty.

There are two statutory grounds to grant pardon—

* firstly, that the court, when imposing sentence, did not or could not take account of a circumstance which, if the court had been aware of it, would have led to a different sentence or to no sentence at all; and

* secondly, that the (continuation of the) implementation of a sentence in all reasonableness cannot serve any purpose for which the implementation was intended.

The prosecution service and the court, which imposed the sentence, are as a rule to be consulted before the pardon may be granted. Pardon may involve a complete or partial remission of the sentence, the suspension of the implementation of the sentence, or the conversion of the sentence into a less serious one. Furthermore, a pardon decision can be made conditional. The conditions of a conditional pardon are similar to the conditions of a suspended sentence.

As a result of the "Wet stroomlijning procedure gratieverzoeken" (The Streamlining of Reprieve Procedures Act) which came into operation on 3 June 2003, requests for remission of sentence are being dealt with more quickly and in a better way, largely—

* because these requests have to meet stricter requirements; and

Section 175(1) of the Constitution of Nigeria provides that the President may, among others—

* grant to any person concerned with or convicted of any offence created by an Act of the National Assembly of Nigeria a pardon, either free or subject to lawful conditions;

* grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on him or her for such an offence; or

* remit the whole or any part of any punishment imposed on that person for such an offence.

However, the President may exercise these powers only after consultation with the Council of State.

In terms of section 212(1) of the Constitution, the Governor may, among others—

* grant any person concerned with or convicted of any offence created by any Law of a State a pardon, either free or subject to lawful conditions;

* grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on him or her for such an offence; or

* remit the whole or any part of any punishment imposed on that person for such an offence.

These powers may only be exercised by the Governor after consultation with such advisory council of the State on prerogative of mercy as may be established by the Law of the State.

Section 121(1) of the Constitution of Uganda provides for the establishment of an Advisory Committee on the Prerogative of Mercy which consists of the Attorney-General (as Chairperson) and six prominent citizens of Uganda appointed by the President. Provision is further made that the President may, on the advice of the Advisory Committee, among others—

* grant to any person convicted of an offence, a pardon, either free or subject to lawful conditions;

* grant to a person a respite, either indefinite or for a specified period, from the execution of punishment imposed on him or her for an offence; or

* remit the whole or part of a punishment imposed on a person.

In cases where a person has been sentenced to death for an offence, a written report of the case from the trial judge or person presiding over the court or tribunal, together with such other information derived from the record of the case or elsewhere as may be necessary, must be submitted to the Advisory Committee on the Prerogative of Mercy.

In terms of section 188(1) of the Constitution of the Co-operative Republic of Guyana the President may, among others—

* grant to any person concerned in or convicted of any offence under the law of Guyana, a pardon, either free or subject to lawful conditions;

* grant to any person a respite, either indefinite, or for a specified period, of the execution of any punishment imposed on him or her for such an offence; or

* remit the whole or any part of any punishment imposed on any person for such an offence.

These powers are exercised by the President after consultation with a Minister designated by the President (the designated Minister).

Section 189(1) of the Constitution establishes an Advisory Council on the Prerogative of Mercy, consisting of the designated Minister (as Chairperson), the Attorney-General and not less than three and not more than five other members, appointed by the President. In terms of section 190(2) of the Constitution the designated Minister may consult the Advisory Council before expressing any opinion to the President, but he or she is not obliged to act in accordance with the advice of the Advisory Council.

Section 190(1) provides that where, under the law of Guyana, any person has been sentenced to death by any court, the designated Minister must cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Minister may require, to be taken into consideration at a meeting of the Advisory Council. After obtaining the advice of the Advisory Council the designated Minister expresses his or her own deliberate opinion to the President as to whether he or she should exercise any of his or her above-mentioned powers in relation to that person.

Section 22P(1) of the Constitution of Singapore provides that the President may, on the advice of the Cabinet—

* grant a pardon to any accomplice in any offence who gives information which leads to the conviction of the principal offender or any one of the principal offenders, if more than one;

* grant to any offender convicted of any offence in any court in Singapore, a pardon, free or subject to lawful conditions, or any reprieve or respite, either indefinite or for such period as the President may think fit, of the execution of any sentence imposed on such offender; or

* remit the whole or any part of such sentence.

Provision is further made that where a sentence of death has been imposed on an offender by a court and that sentence has been confirmed by the appellate court, the President must cause the reports that are made to him or her by the Judge who tried the case and the Chief Justice or other presiding Judge of the appellate court to be forwarded to the Attorney-General for his or her opinion thereon. Such reports, together with the Attorney-General's opinion, are then submitted to the Cabinet to advise the President on the exercise of his or her above-mentioned powers.

Section 85 of Part 5 of the Constitution of Fiji empowers the President to, among others—

* grant to a person convicted of an offence under the law of the State a pardon or a conditional pardon;

* grant to such a person a respite, either indefinitely or for a specified period, of the execution of the punishment imposed for the offence; or

* remit the whole or a part of the punishment imposed.

Provision is further made that the President, in exercising these powers, must act on the advice of the Commission on the Prerogative of Mercy consisting of the Attorney-General (as Chairperson) and two other members appointed by the President, acting in his or her own judgment.

Furthermore, the Fiji Constitution establishes certain independent offices, which include the Commission on the Prerogative of Mercy, whose functions and powers are "not subject to the direction and control of any person or authority". This independence seeks to ensure that the judgment of such an office is not compromised as a result of influence from those in power. However, the judgments are subject to the court's power to determine whether the independent officer has performed the functions as required of him or her under the Constitution.

In terms of section 44(2)(c) of the Constitution of Zambia, the President has the power to "pardon or reprieve offenders, either unconditionally or subject to such conditions as he may consider fit". Section 44(6) further provides that the President, in the exercise of any functions conferred upon him under section 44, "shall, unless he otherwise obliges, act in his own deliberate judgment and shall not be obliged to follow the advice tendered by any other person or authority". Provision is further made that the President may, among others, grant to any person convicted of any offence a pardon, either free or subject to lawful conditions. Section 60 of the Constitution provides for an advisory committee on the prerogative of mercy, consisting of such persons as may be appointed by the President. Provision is further made that the President may refer any questions relating to the exercise of the powers conferred upon him or her by section 59 to such an advisory committee. Furthermore, the President may determine the procedure of the advisory committee.

Section 72(1) of the Constitution of Romania provides that the Parliament has the power to pass constitutional, organic and ordinary laws. Provision is further made that an organic law must regulate the granting of amnesty or collective pardon. In terms of section 94 of the Constitution the President has, among others, the power to grant individual pardon.

Section 99(1) of the Constitution provides that the President, in the exercise of his powers, must issue decrees which must be published in the Official Gazette of Romania. Provision is further made that the absence of publicity entails the non-existence of a decree. Section 99(2) provides that the decrees issued by the President in the exercise of some of his powers, including the power to grant individual pardon, must be countersigned by the Prime Minister.