CLA News / President’s Message (October 2026) – Executive Clemency and the Rule of Law: Reconciling Mercy with Accountability by CLA President Steven Thiru

In my view, the pardon power is inconsistent with the rule of law and allows the head of state to exercise an arbitrary power…Where it is subject to judicial review the position is somewhat ameliorated but by no means completely. I have no doubt that the power can be replaced with a more democratic system. Some process is necessary to deal with injustices or changes in the relevant societal norms.

— Richard Goldstone, Former Judge of the South African Constitutional Court and former Chief Prosecutor at the International Criminal Tribunals for both Rwanda and the former Yugoslavia

The Nature and Scope of the Pardon Power

Few constructs in constitutional jurisprudence are as doctrinally elusive or historically contentious as the pardon power. In the English tradition, the royal prerogative of mercy represents a historic sovereign power vested in the British monarch, authorising the Crown to grant clemency to individuals convicted of criminal offences.

Arguably, the primary utility of the royal prerogative of mercy emerged as a critical safeguard against the mandatory imposition of the death penalty, serving as a humanitarian mechanism to commute capital sentences to less severe forms of punitive detention. In contemporary constitutional practice, however, its scope has broadened significantly, permitting the executive to alter, reduce, or nullify virtually any judicial sentence or penalty imposed by the courts.

Black’s Law Dictionary characterises a pardon as an act of grace that exempts an individual from punishment for a crime. In R v Home Secretary, ex parte Bentley [1994] QB 349, Watkins L.J. described the prerogative as a flexible power that should be adapted to the circumstances of each case and serve as a constitutional safeguard against miscarriages of justice. Similarly, in Falae v Obasanjo (No. 2) (1999) 4 NWLR (Pt. 599) 476, 495, it was recognised that a pardon may mitigate or extinguish punishment and restore rights and privileges forfeited as a result of an offence.

Clemency is recognised across jurisdictions, but its use remains controversial, raising important questions about accountability and the limits of executive discretion.

When Mercy Advances Justice

The power of clemency has, on several occasions, fulfilled vital humanitarian and corrective functions within the administration of justice. At its noblest, it operates as an indispensable equitable safety valve, tempering the rigidity of law when its strict enforcement would yield morally unconscionable outcomes. This moderating function has been particularly crucial in the context of mandatory capital punishment, where the courts were deprived of sentencing discretion.

A paradigmatic illustration is found in the seminal English criminal law case of R v Dudley and Stephens (1884) 14 QBD 273 (DC), which arose after shipwrecked crew members of the yacht Mignonette, adrift for weeks without sustenance, killed and consumed a critically ill cabin boy to survive. The court held that necessity was no defence to murder and sentenced the survivors to death. The Crown subsequently exercised the royal prerogative of mercy to commute their capital sentences to six months’ imprisonment.

Sovereign clemency has also served as a pragmatic instrument of statecraft to pacify civil unrest and restore social cohesion after political upheaval. Following the Peasants’ Revolt of 1381, King Richard II issued a general pardon to most of the insurgents as well as the officials responsible for summary executions, excluding only the chief instigators and active fugitives. This sweeping amnesty helped prevent further retributive bloodshed and restored the King’s peace.

More recently, the authority to pardon has been deployed on a systemic scale to address the legacy of disproportionately punitive and anachronistic legislation. A prominent example is the clemency initiative undertaken by former United States President Barack Obama, who granted executive clemency to 1,927 individuals. Directed towards non-violent narcotics offenders incarcerated under outdated and disproportionately punitive laws, this application of presidential clemency served both to redress substantive sentencing disparities and to alleviate the severe overcrowding of federal penitentiaries.

In South Africa, as demonstrated by the case of President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC), President Nelson Mandela exercised his constitutional pardon authority to remit the remaining sentences of certain categories of prisoners, including eligible incarcerated mothers with minor children under the age of twelve. Grounded in restorative compassion and the best interests of young children deprived of maternal care, such interventions exemplify the pardon power at its constitutional zenith: an extraordinary measure employed to advance substantive equity, public welfare, and humane governance.

Clemency That Casts a Pall Over the Administration of Justice

When executive clemency insulates state actors or political elites from criminal accountability, it risks undermining the rule of law.

A stark illustration of how clemency can undermine accountability for grave state atrocities occurred in Sri Lanka in March 2020, when former President Gotabaya Rajapaksa pardoned former army Sergeant Sunil Rathnayaka, who had been sentenced to death for his role in the December 2000 Mirusuvil massacre. A five-member Supreme Court bench had unanimously affirmed his conviction less than a year earlier. By overturning a landmark judgment in one of the rare instances holding a military official responsible for wartime atrocities, the executive denied the victims’ families substantive fairness and legal redress, and signalled that state-aligned perpetrators could stand above the law.

The use of presidential clemency in ways that risk undermining confidence in the administration of justice was particularly apparent in the United States under both Donald Trump and Joe Biden. In 2020, Trump pardoned Charles Kushner, the father of his son-in-law Jared Kushner, who had pleaded guilty to, and been convicted of, federal offences including tax evasion and witness tampering.

In December 2024, then-President Joe Biden granted his son, Hunter Biden, an unconditional pardon despite repeated statements that he would not intervene in the legal proceedings. Biden said that his son had been selectively and unfairly prosecuted, notwithstanding his guilty plea to federal tax offences and conviction on felony firearms charges.

Trump’s second term has raised similar concerns on a broader scale. On taking office in January 2025, he granted clemency to approximately 1,500 individuals charged in connection with the Capitol attack and subsequently issued pre-emptive pardons to 77 political allies — including his ex-lawyer Rudy Giuliani and ex-chief of staff Mark Meadows — implicated in efforts to overturn the 2020 election.

Serious questions about fairness and accountability also arise from the exercise of executive clemency in relation to former Malaysian Prime Minister Dato’ Sri Mohd Najib Razak, particularly in the context of his SRC International and 1MDB cases. In July 2020, he was convicted of abuse of power, criminal breach of trust, and money laundering in the SRC International scandal, and received a twelve-year custodial sentence. In February 2024, an executive pardon halved his sentence to six years, while his separate, multi-billion-dollar 1MDB abuse of power and money laundering trial was ongoing. In December 2025, the High Court dismissed his bid to enforce a purported addendum to the pardon allegedly permitting house arrest, ruling it legally invalid. Days later, he was convicted in the 1MDB trial and handed a fifteen-year prison term. He has appealed the conviction.

In September 2026, he received a second pardon, permitting him to serve the remainder of his SRC sentence under house arrest despite the absence of a statutory framework for home detention under Malaysian law. This decision came while his 1MDB conviction was under appeal and other legal proceedings remain unresolved. The timing of the pardon therefore raises questions about the appropriateness of granting such relief before related criminal proceedings have concluded.

The Malaysian Bar has challenged the first pardon, and announced that it will also challenge the second, calling for greater transparency and clear, objective criteria to prevent perceptions of preferential treatment.

Taken together, these examples illustrate how selective or insufficiently explained clemency may reinforce perceptions of a two-tier system of justice in which the powerful enjoy preferential treatment. Rather than tempering justice with mercy, such applications of clemency can weaken equality before the law and diminish public trust in the impartial administration of justice.

The Justiciability of Executive Clemency

If the executive function of pardon is to be prevented from degenerating into an instrument of elite impunity, its use should not be assumed to be unfettered or necessarily immune from judicial scrutiny. As Justice Richard Goldstone aptly observed, whilst judicial review alone may not cure every defect of the pardon power, appropriate judicial oversight can serve as an important safeguard to help ensure that clemency is deployed lawfully, rationally, and in accordance with the principles of fairness and accountability.

The UK Supreme Court took a vital step in clarifying the justiciability of prerogative powers in R (on the application of Miller) v The Prime Minister [2019] UKSC 41 and Cherry and others v Advocate General for Scotland [2019] UKSC 41. The cases arose when then-Prime Minister Boris Johnson advised the Queen to prorogue Parliament for five weeks during the Brexit negotiations, a move that critics argued was designed to stifle parliamentary debate.

While the Government and some commentators argued that prorogation was an inherently political, non-justiciable exercise of the royal prerogative, the Supreme Court unanimously held that the advice and subsequent prorogation were unlawful, void, and of no legal effect. By anchoring the limits of prerogative powers in fundamental constitutional principles, the Supreme Court affirmed the judiciary’s vital role as a constitutional counterbalance. The judgments demonstrate that even the use of discretionary prerogative powers may be subject to judicial scrutiny where constitutional limits are at stake. By analogy, this reasoning supports the argument that the application of clemency is not necessarily immune from judicial review where it may exceed lawful limits or compromise fundamental constitutional requirements.

Using clemency to shield corrupt individuals erodes the norms of good governance, transparency, accountability, and the rule of law enshrined in Article 8 of the Commonwealth Charter, including its commitment to rooting out systemic and systematic corruption. The Commonwealth (Latimer House) Principles on the Three Branches of Government likewise emphasise the respective responsibilities of the executive, legislature, and judiciary in upholding the rule of law, fundamental human rights, and good governance. Executive clemency that improperly interferes with judicial decisions risks compromising judicial independence and the core tenet of separation of powers.

The Exercise of Clemency: Fairness, Accountability, and Public Confidence

The royal prerogative of mercy is not inherently inconsistent with the rule of law; it serves legitimate purposes, including correcting injustice and tempering the severity of punishment. The critical question is how this exceptional power is invoked, the legal and constitutional constraints to which it is subject, and the safeguards necessary to ensure fairness and accountability. It must remain consistent with the constitutional order and be exercised without improper favour.

Even where legally permissible, clemency may undermine public confidence in the administration of justice if its rationale is unclear or its application appears arbitrary or selective, particularly where it reinforces perceptions of inequality and the belief that the elite enjoy special treatment. Constitutional democracy therefore requires a principled balance between mercy and accountability, ensuring that justice is neither compromised in secret nor denied to the public in whose name it is enforced.

Steven Thiru

President

Commonwealth Lawyers Association

13 October 2026

Steven Thiru records his appreciation to Jaishanker Sadananda and Chin Oy Sim for their assistance in preparing