Vanuatu pardons examined by constitutional law expert
A professor of constitutional law Bill Hodge says Vanuatu's President may have the power to reverse the pardons controversially granted at the weekend to 14 convicted MPs.
Transcript
A professor of constitutional law Bill Hodge says Vanuatu's President may have the power to reverse the pardons controversially granted at the weekend to 14 convicted MPs.
The President Baldwin Lonsdale says the acting head of state unlawfully pardoned himself and 13 other MPs who were found guilty of accepting bribes.
Parliament's Speaker Marcellino Pipite was standing in for the President while he was abroad.
Professor Bill Hodge of New Zealand's Auckland University told Sally Round there is a legal way out.
BILL HODGE: A political or a moral reaction is it really stinks. It makes the rule of law look like it's totally absent from Vanuatu. The problem is that there is a legitimate pardoning function and it is located in the constitution and I think all the jurisdictions in the Pacific do have a pardoning power for the Chief Executive so it's a legitimate, or put it this way, it has the veneer of constitutional legitimacy.
SALLY ROUND: The President Baldwin Lonsdale has returned and he's very angry, or visibly upset by what's happened. What legal avenues are open to him now?
BH; I have to say I have never heard of the Head of State or Governor-General deciding that he or she wants to try to rescind , reverse, revoke, declare null and void the actions of his temporary administrator, the person acting in his shoes. I don't know that that's ever happened in a modern constitution before. He may have implicitly a power to negate and reverse such pardons by his predecessor. That's probably the advice that he's getting, so the Attorney General will be doing some research and I bet he can't find any precedents but I think it's worth a go and I bet he can pass effectively a royal pardon in reverse and say the purported pardon issued by my substitute is reversed and invalid and cannot be relied upon so that the judicial process could continue. As I understand it was interrupted and we didn't even get to the final step that the court takes which is to impose sentence.
SR: Yes because if you read the constitution and the provision on pardons , the provision talks about the pardon being available for sentences not for the actual criminal acts themselves. What do you think of that provision?
BH: Well I think that that provision is incredibly far-sighted . Whoever put that in probably had in mind the original controversy in England and the Bill of Rights of 1688 forbid the monarch from in effect suspending laws. He did still have the power of pardon but it would have to take place after trial, after conviction after sentencing. And the most recent, I think, terrible example was President (Gerald) Ford in the United States purporting, and this was never really challenged effectively, former President, ex President Richard Nixon for crimes allegedly committed at Watergate and in order to put it all behind us etc he said 'I'm going to pardon Nixon for all and any crimes even though he hasn't been convicted of any yet.' That was suspending those laws in my view and that was another, I think, violation of the rule of law. So whether the returning President picks up the memoranda left on his desk, whether he can reverse it will be a new precedent. If I'm a betting person I would say I think it is valid for a returning president to reverse the actions of his predecessor especially when they have the smell of bad constitutionality behind them because it's interrupting the whole judicial process, not waiting until it had been concluded.
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