The power to grant mercy is a fundamental aspect of the Executive, vested in the President and exercised following the advice of the Commission on the Prerogative of Mercy (“Commission”). The judicial review of these decisions poses legal and constitutional questions, balancing executive discretion with principles of justice and accountability. This article will explore the arguments surrounding the reviewability of presidential decisions on mercy, highlighting the principles, case law, and theoretical perspectives.
The Prerogative of Mercy (“POM”) is rooted in the sovereign’s power to dispense clemency. In Mauritius, the POM is one provided by the Constitution. This power is conferred upon the President, advised by the Commission. The Commission evaluates applications for mercy and advises the President, who then makes the final decision of clemency.
Section 75 of the Constitution grants the President broad powers regarding the POM.
These include granting pardons to convicted persons, respites or reduced punishments, and remitting penalties or forfeitures. Advising the President is the Commission, composed of a chairman and at least two members appointed by the President. The President is mandated to act upon the advice of the Commission, though there exists section 75(4) (b) which provides the President the power to request reconsideration of such advice by the Commission. After reconsideration, the President must adhere to the Commission’s advice.
Historically, courts have shown reticence in reviewing mercy decisions, often viewing them as unsuitable for judicial review due to their discretionary nature, but pivotal cases have gradually shaped the legal landscape, opening the door to judicial scrutiny under specific circumstances.
Notably, the case of Poongavanam v The Commission on the Prerogative of Mercy 1999 SCJ 396 marked a significant milestone, whereby the Supreme Court acknowledged the potential for judicial review of mercy decisions under specific circumstances. This case was an application for leave to apply for judicial review of the of the President acting on the advice of the Commission. The Supreme Court stated that until recently the POM was considered by courts in England as being unsuitable for judicial review.
However, the court referred to the case of R. v. Secretary of State for the Home Department, ex parte Bentley [1993] 4 LRC 15, where the High Court held that it had jurisdiction to review the exercise of the royal POM by the Home Secretary in accordance with accepted public law principles since the exercise of the prerogative was an important feature of the criminal justice system and a decision by the Home Secretary which was infected with legal errors ought not to be immune from legal challenge merely because it involved an element of policy or was made under the prerogative.
The court in that case went so far as to review the decision of the Home Secretary not to recommend a posthumous free pardon for a youth hanged for murder 40 years previously, on the ground that he had considered only an unconditional pardon and had failed to take account of other possibilities. Although in the exceptional circumstances of that case the court did not think it would be right to make any formal order or declaration and merely invited the Home Secretary to look at the matter again, it clearly took a long step towards judicial review of the POM.
The Supreme Court recalled that the combined effect of sections 118 and 119 of our Constitution is that a court of law is not precluded from exercising jurisdiction in relation to any question as to whether any Commission established by the Constitution has performed its functions in accordance with the Constitution or any other law. Given that section 75(1) provides for a constitutional exercise of a quasi-judicial function by the Executive, the court only has power when the POM is exercised in breach of the Constitution.
The court hence concluded that the Commission may advise the President to substitute any less severe form of punishment so long as that other form of punishment does not breach any other provision of the Constitution, more particularly in relation to fundamental rights.
Indeed, since then, the Judiciary’s role in reviewing executive decisions on mercy has been a subject of legal interpretation, with subsequent cases increasingly favouring the principle of reviewability, albeit in specific circumstances. In the case of De Boucherville Roger F P v State 2009 SCJ 5, the Supreme Court reaffirmed the principles established in Poongavanam (supra), stating that decisions of the Commission are amenable to judicial review. The court highlighted the quasi-judicial function of the Executive under section 75(1) and emphasised that judicial intervention is warranted if there is a breach of the Constitution.
In Mertz v State 2012 SCJ 382, the court further elucidated on the constitutional framework surrounding the POM. It affirmed that this power is integral to the Constitution, not merely a discretionary act but a fundamental component of the constitutional scheme. The court clarified that this constitutional function falls squarely within the executive domain, distinct from judicial powers, thereby upholding the integrity of the separation of powers.
This case however emphasised that the wording of Section 119 of the Constitution clarifies the scope of judicial review over the Commission’s actions, and that courts retain jurisdiction to ensure adherence to constitutional and legal standards. This provision safeguards against arbitrary exercise of executive authority, ensuring that mercy decisions uphold the principles of justice and constitutional rights.
More recently, in the case of Director of Public Prosecutions v Commission on the Prerogative of Mercy 2024 SCJ 89, the DPP applied for a judicial review of the Commission’s decision-making process to substitute a sentence of a fine of Rs 100,000 […] for that of one year’s imprisonment. The grounds on which the application was made was that the decision-making process was based on an error of law and was unreasonable. The Supreme Court summarised the powers of the Commission as follows:
“The Commission on the Prerogative of Mercy is set up under section 75(2) of the Constitution to advise the President in the exercise of the powers conferred upon the latter by section 75(1).This section of the Constitution empowers the President to grant any person convicted of any criminal offence a free or conditional pardon or a respite of the execution of the punishment imposed, or substitute a less severe form of punishment for any punishment imposed or remit the whole or part of any punishment imposed. When exercising his powers, the President must pursuant to section 75(4)(a) of the Constitution act in accordance with the advice of the Commission on the Prerogative of Mercy. The President may request the Commission to reconsider any advice tendered by it and the President shall act in accordance with such advice as may be tendered after such reconsideration. Section 75 thus provides for a constitutional exercise of an extra-judicial function by the Executive…
The wording of section 119 of the Constitution makes it clear that the saving for jurisdiction of courts is not for all purposes but is limited to courts exercising jurisdiction in relation to any question whether the person or authority has exercised those powers in accordance with the Constitution or any other law. The saving provision set out in section 119 applies to the constitutionality or lawfulness of Commission’s actions”.
The Court found that the Commission had the authority to regulate its own procedure under section 118(3) of the Constitution and to advise the President on substituting punishments under section 75(1)(c). At the time of the decision, no appeal for special leave to the Judicial Committee of the Privy Council (JCPC) was pending, as the co-respondent had withdrawn his application, making the conviction and sentence final. The Supreme Court concluded that the Commission’s actions were lawful, the substitution of the fine was within legal bounds, and there was no evidence of improper conduct. The court hence concluded that the Commission acted within its constitutional authority, and its decision was valid and appropriately executed.
Hence, such case laws underscore the Judiciary’s authority to intervene if mercy decisions violate constitutional rights or procedural fairness. While section 118(3) of the Constitution grants the Commission autonomy in regulating its procedures, section 119 ensures that the Commission operates transparently and fairly in evaluating mercy petitions. Despite its executive status, the Commission must uphold constitutional principles, including the protection of fundamental rights and due process.
Nevertheless, it is important to note the lack of transparency in the decision-making process of the POM. The decision-making process and the rationale behind the decision taken are not communicated to the interested parties nor are these published. Without knowing the basis for the Commission’s advice and the President’s decision, it is challenging for applicants to identify potential legal errors or breaches of constitutional principles that could form the grounds for judicial review. It is only in an application for judicial review that one can ask the Commission to bring up the records, that also has to be granted by the court at the leave stage.
The absence of published decisions and rationales means there is no established precedent for future cases, making the process unpredictable. We are also left in the dark as to the criteria used by the Commission and the President to make their decisions as these are not clearly defined or publicly available, leading to perceptions of arbitrariness. There may consequently be inconsistencies in how similar cases are treated, leading to perceptions of injustice or inequality.
Therefore, the reviewability of presidential decisions on mercy underscores a delicate balance between executive authority and judicial oversight in Mauritius. While the President exercises discretion in granting clemency, informed by the advice of the Commission, the Judiciary has a critical role in ensuring adherence to constitutional standards. However, the current lack of transparency in the decision-making process poses significant challenges, hindering accountability and potentially compromising the fairness of outcomes.
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About the authors:
SATYAJIT BOOLELL SC
Senior Counsel & Chairman at Temple
Satyajit Boolell SC served as Assistant Solicitor General and Parliamentary Counsel at the Attorney General’s Office, working on the development of legislation and with Sir Ian Brownlie on the Chagos Archipelagos issue. His international expertise includes participation in United Nations conferences and work with the Commonwealth Secretariat. Appointed as Director of Public Prosecutions in 2009, he held the position until 2022. After retiring, he joined Temple as Chairman.
