What Is the Power of Mercy?

The power of mercy is the constitutional recognition that a lawful sentence is not always a just outcome. Sections 151 and 152 of the Constitution set out how it works.

Section 151(1) — what may be granted

What the different forms mean

• Free pardon — unconditional. It has a specific constitutional consequence: under section 37(9), no person shall be tried for an offence for which they have been pardoned. And under section 103(6), if a free pardon is granted, the disqualification from Parliament ceases — and if the writ for the by-election has not been issued, the member is restored to their seat.
• Conditional pardon — granted on terms; breach of the condition revives the position.
• Remission — reduction of the sentence to be served.
• Commutation — substitution of a different, lesser sentence.
• Respite — postponement of execution of the sentence.
• Remission or refund of a fine, penalty or forfeiture — including money already paid.

Section 152 — the Advisory Committee

An Organic Law shall provide for an Advisory Committee on the Power of Mercy, and for its appointment, constitution, powers and procedures — the Organic Law on the Advisory Committee on the Power of Mercy.

Section 151(2) and (3) — accomplices

Where an offence has been committed, the Head of State on NEC advice may grant a pardon, free or conditional, to an accomplice who gives evidence that leads to the conviction of a principal offender.

Section 151(3) then imposes an important restriction: except in that accomplice case, or as otherwise permitted by or under an Act, the exercise of the power of mercy shall not be held out, offered or promised in advance of conviction. Mercy may not be traded before trial.

Section 151(4) — parole, probation and release on licence

Nothing in section 151 prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems. Those are statutory schemes with their own criteria and decision-makers — they are not exercises of the power of mercy, and they are a separate route from it.

How an application is made in practice

1. The application, with supporting material, goes to the Advisory Committee on the Power of Mercy in accordance with the Organic Law.
2. The Committee considers it and reports.
3. The National Executive Council considers the report and decides what advice to give.
4. The Head of State acts on that advice.

Useful material typically includes the sentencing remarks, the record of the proceedings, conduct in custody, health and family circumstances, and anything bearing on the justice of the case that the court could not take into account. This is not an appeal: it does not reopen guilt. If the complaint is that the conviction or sentence is wrong in law, the route is review or appeal under section 37(15), and section 155(2)(b).