The quality of mercy


We were astonished to read, earlier this week, in another section of the press, a claim that the decisions of the Mercy Committee of the local Privy Council were not subject to judicial review or, as it was put, “no court of law in Barbados has power to review the decisions of the Mercy Committee”. The writer purported to rely on “one of the regulations that govern the body”, although the express provision was not cited or even referenced by source. Given the current discourse in the public domain concerning some recent decisions of the Committee that have been made without reference to the families of the victims, we consider the matter one of topical public interest and therefore deserving of closer study.
It is correct to state that the weight of judicial opinion was, at one time, unwilling to question the executive decision to grant or refuse mercy in respect of issuing or not issuing a pardon or remission of a sentence for a criminal offence. Indeed, in one regional decision, Lord Diplock asserted for the Judicial Committee of Her Majesty’s Privy Council, “mercy is not the subject of legal rights. It begins where legal rights end”, and that “a person has no legal right to have his case considered in connection with the exercise of the prerogative of mercy…”
However, this view was later discredited by a differently constituted Bench in an appeal from Jamaica, there, it was held that a failure to allow the applicant to respond to material placed before the Mercy Committee and from making other representations infringed his constitutionally guaranteed right to a fair hearing and thereby nullified the adverse decision of the body.
Apart from this, the Caribbean Court of Justice [CCJ], in the relatively recent Barbadian case of Attorney General v Boyce & Joseph determined that the prerogative of mercy under the supreme law of Barbados is indeed subject to the demands of procedural fairness. 
In that case, counsel for the Crown sought to argue that section 78 of the Constitution had codified, preserved and institutionalised the prerogative of mercy and that this section “ought not to be regarded as a mere statutory power subject to judicial review”. Their Lordships were not persuaded, holding that “there was nothing to prevent the court from examining the procedure adopted by the [committee] and testing it for procedural fairness by reference to the rules of natural justice and, for compliance with the fundamental rights and freedoms recognised in the Constitution”.
The legal position appears to be similar throughout the Commonwealth, and courts in India, South Africa, Singapore and New Zealand, for examples, have all claimed a power of judicial review in respect of the exercise of the power of mercy.
This is not an absolute power however. In the CCJ case referred to above, de la Bastide P. emphasised that justiciability concerning the exercise of the power of mercy applies not to the decision itself but to the manner in which it was reached. “It does not involve telling the Head of State whether to commute…” 
Too besides, challenges are most likely to arise as a consequence of decisions adverse to a sentenced applicant. The present local scenario contemplates taking into account the views of the members of the victim’s family – a different determination. 
Simply put, the critical issue is one of procedural fairness. Is it fair to all concerned that the decision to exercise the prerogative of mercy should be one made without reference to these alternative views? And complex legal problems of the standing of these individuals will still have to be resolved. 
The decision however, is not itself free from judicial question.

Barbados Advocate

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