US President Donald Trump. File photo: Cathal McNaughton/ Reuters
A big issue that arose during the transfer of power from Joe Biden to Donald Trump is pardons.
Trump controversially pardoned everyone convicted of joining his insurrection on 6 January 2021, even those convicted of violence against police.
Biden also pardoned, or commuted sentences, on an enormous scale, partly because of inconsistency in sentencing, particularly non-violent drug offenders. Some of these are controversial but it is difficult to get an objective report as pro-Trump commentators bill all clemency as “pardons” (the verdict is erased) when many are clearly commutations (sentence reduction).
Also controversial is Biden’s pardon of people close to him, including his son Hunter, and leaders who were under threat of malicious prosecution by Trump such as Dr Anthony Fauci.
It is telling that Vice-President JD Vance, when asked if the violent offenders in Trump’s insurrection should be pardoned, said they should not, but Trump pardoned all of them without exception — nearly 1 600. Some of those pardoned had extensive criminal records including child sex crimes.
Trump’s excuse for a blanket pardon was that sentencing was inconsistent and it would have taken too long to sort through, yet the inconsistency in sentencing points to past crimes being taken into account.
So clearly something irrational is going on — but under US law, none of this can be challenged.
The South African Constitution contains a very important provision, section 2 Supremacy of the Constitution: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
This provision creates an overarching principle of constitutionality that, among other things, requires that any state act must be both rational and reviewable, as well as being consistent with the Bill of Rights.
The US Constitution, in article VI, has much weaker wording: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The US wording does not explicitly make the constitution supreme; the implication is that anything expressed in the constitution can stand alone and need not be read with the rest of the constitution.
The first 10 amendments to the US constitution constitute the Bill of Rights; these rights are generally couched as a right that exists and should not be infringed, rather than a right that the amendment establishes. On this basis, it could be argued that a right not so enumerated exists because it has not been eliminated — such as a right of review of any state act.
However, where that interpretation is clearly at odds with reality is the presidential pardon power. In the US constitution, article II, section 2, clause 1 includes the following: “The president … shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
This power derives from the earlier concept of royal prerogative. The South African Constitution is superficially similar as section 84(2)(j) gives the president responsibility for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”. However, in South Africa, this prerogative must be interpreted in the bounds of the Constitution whereas in the US, the prerogative is generally seen as unlimited within the bounds of federal offences — except that a pardon for a future offence cannot be granted as that would make it possible to nullify the law.
That principle was established in the UK during the time when King James II was forced to abdicate after attempting such action, nearly a century before the US became independent.
In South Africa, the limits of this presidential prerogative have been argued through the courts several times. One of the questions where the courts have tended to side with the government is that a pardon does not constitute “administrative action” as contemplated in section 33 of the Constitution and the Promotion of Administrative Justice Act (PAJA).
The Act codifies the right to be given reasons for administrative actions; the courts have generally held that the pardon power is not covered, for example, in Minister of Justice and Constitutional Development vs Chonco (Concourt 2009).
However, other useful clarifications have arisen from case law. For example, in President of the Republic of South Africa and Another vs Hugo, the Concourt in 1997 reviewed the extent to which gender equality could play a role in a blanket commutation. In Chonco, the court agreed that though there is no right to a pardon, the fact that the president has power to pardon means that an application for pardon must be considered.
Given that the pardon power is reviewable, there is a case to be made for codifying the process of the application of presidential power in legislation, much as PAJA codifies the right to fair administrative action.
However, even without that, the pardon power in South Africa is at least broadly-speaking reviewable. If it is irrationally exercised, or in contravention of the Constitution, it can be set aside by a court. The US pardon power is far less restricted — and not much different from royal prerogative.
Philip Machanick is an emeritus associate professor of computer science at Rhodes University.