Last resort

Presidential power of pardon isn’t something unique even in modern republics. This genetically royal prerogative is vested in the hands of a country’s chief executive. It serves as a last resort when criminal law system has no other means of flexibility. I remain a little bit indifferent about that power as such, but what seems interesting is its scope, mainly considering the separation of powers or checks and balances principle. Many papers have been devoted to that topic (see historical outline presented in W.F. Duker, “The President’s Power to Pardon: A Constitutional History” William and Mary Law Review vo. 18, issue 3). Of course, depending on the country, the history and tradition of the pardon dispensing and its subsequent enforcement in criminal cases, may be very developed or just the opposite – not even worth mentioning. There are some general pardon’s-scope-related issues that attract the attention of scholars:

• Can a pardon be conditional?
• Does pardon require acceptance by its beneficiary?
• Can the president pardon himself?
• Must pardon be individual, or may it take the form of amnesty?
• Can a pardon be purely blanket in form?
• Must the president indicate the concrete crime he pardons from?
• Can the pardon be challenged before a court of law?
• Can a pardon be issued before conviction and cease the investigation (or even prevent it from being commenced in the first place)?

All of them has already been addressed in various publications, but the last two are somehow exceptional. Why do you ask? Well, mostly because they are only superficially related to the pardon as such. They actually perfectly reflect the unique complexity of the constitutional legal order of a state. Just to clarify – I am not interested in criminal liability of a president for issuing a pardon and court’s (or other body’s) supervision over that. It is rather uncontroversial that in this perspective a president may be impeached for issuing pardons i.a. in exchange for bribes. That is a method of control over how they dispense their prerogatives and a sort of a safety anchor embedded in the system. But it is only a derivative matter.

Can it be reviewed?

The real question is the following – may the validity of a pardon be questioned? It actually combines the two issues I have emphasized – what happens if a pardon is granted before the investigation ends or during the first instance trial or during the appeal procedure? Would it be possible for the victim to question its effectiveness before the guilt is established by a proper and independent court of law in a due process? I can bet that our immediate intuition is that pardon is an absolute prerogative and belongs solely to the president who is at full liberty to use it as he finds it fit. But should it be like that? What with a right to a fair trial, separation of powers and court’s exclusive right to administer justice? And what about the victim and their rights? If the president pardons someone before the establishment of the perpetrator’s guilt – does the victim inherently lose their right to demand justice? It was clearly stated in an old US case Burdick vs. the U.S. in 1915 (236 U.S. 79) where it was indicated that pardon carries an imputation of guilt and acceptance a confession of it.

Symbolism of pre-emptive pardon?

Criminal law despite it’s more and more technical appearance is all about condemnation and symbolism. Declaration “guilty” sends a twofold message – one to the society that criminal acts are punished and publicly declared as wrong, the second to the perpetrator that they should be ashamed by what they did and that the public identifies it as blameworthy. Pardoning after that declaration does not, however, vacate the verdict of history (despite what lawyers of ex-Sheriff Joe Arpaio tried to accomplish). The symbolic function of a criminal conviction is fulfilled regardless of the subsequent lack or alleviation of penalty. But what if we deprive the society (incl. the victim) of that symbolism? Can we call the beneficiary of the pardon a criminal, perpetrator, offender, etc.? The above, let’s say purely academic doubts came to reality in Poland with an unexpected pardon of Mr. Mariusz Kamiński ex-chief of Anti Bribery Bureau (CBA). He was convicted to 3 years of deprivation of liberty for abuse of power as he had orchestrated illegal operations of the Bureau. Just after an appeal was lodged to the appellate court, president Andrzej Duda (his partisan colleague) pardoned him. It is important to know – before the appellate court decides about the appeal the conviction remains not final and the presumption of innocence still operates. The pardon formula was more or less “forgiveness and putting his acts into oblivion as well as discontinuing any pending criminal proceedings.” President added that he decided, in a way to release the administration of justice from that political case. Subsequently, Mr. Kamiński joined the new government as liaison officer supervising all intelligence service in the country. The appellate court indeed discontinued the proceedings due to the pardon which it had recognized as valid. But the casatory appeal was lodged to the Supreme Court that decided to hear the case in a broadened panel because of its specificity and uniqueness of the arising legal issue (I KZP 4/17). The question was narrowed down to one issue – can such pardon impact the ongoing criminal proceedings? The Supreme Court answered – no, it cannot. The court stressed that this presidential prerogative might be dispensed only towards individuals convicted in a final and valid ruling. Only such interpretation of Constitution in this aspect prevents from violation of other constitutional regulations of checks and balances. Thus, dispensing the pardon before the conviction is final and valid does not affect the ongoing procedure. It means that the appeal must be dealt with. The president may pardon a convict later on.

Constitution(s)

But as it was mentioned before – the devil is in the details. A big part of any debate over the scope of pardon in a particular system depends on the provision providing the prerogative in the first place. Let’s compare Polish an US constitutions to that extent. Art. 139 Polish Constitution The President of the Republic shall have the power of pardon. The power of pardon may not be extended to individuals convicted by the Tribunal of State. Art. 2 sec. 2 US Constitution The President shall (…) have the Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. US constitution seems to be a little bit clearer narrowing the pardon only to offenses and their consequences. However, it was the judiciary that has provided that the power encompasses 5 types of clemency power: pardons, reprieves, commutations, amnesty and ability to remit fines and forfeitures (see K.H. Fowler, Limiting the Federal Pardon Power, Indiana Law Journal vol. 83 issue 4, p. 1652 Fn. 9). So obviously in some cases of dispensing of the power its validity or scope of it was challenged before the court. On the contrary, the reaction in the Polish case was almost hysterical on the part of president’s acolytes.  Some of them (including lawyers) stated that the Supreme Court went beyond its authority and was not simple empowered to examine presidential pardon. Indirectly they refused to acknowledge the ruling as valid.  Well, in a political heat – what can you do? But the most interesting issue that actually arises from the unique case is the practical debate on the separation of powers. The system turns out to be more dynamic that one previously may have thought. The line of argumentation of Polish Supreme Court was naturally elaborated and long but the crucial matter focused on was the ultimate need for reading the Constitution as a whole. Especially interpreting particular competences of different branches in a broader context of the general political system provided for by the Constitution. One must mention the following:

• the system of government shall be based on the separation of and balance between the legislative, executive and judicial powers (art. 10)
• the organs of public authority shall function on the basis of, and within the limits of, the law (art. 7)
• the administration of justice shall be implemented by the Supreme Court, the common courts, administrative courts and military courts (art. 175)
• everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court (art. 45)

It is an imminent feature of the pardon to somehow interfere with the administration of justice (altering the outcome of the trial), but there must be a red line drawn crossing which means stepping beyond one’s authority. If the pardon is an absolute prerogative of the president which may be freely dispensed by them, it can be inherently followed by the notion to make the president the sole and supreme interpreter of that right. In case of the US Constitution, the outcome of such an approach still is limited to those 5 clemency powers. Ok, we may imagine another – the Arpaio issue – president pardoning someone and demanding the court files to be destroyed. In Poland because of the very general wording of the relevant provision the ambit of president’s invention is potentially very broad. The first thing that immediately pops into my mind is tax-exemption. President within his power to pardon declares that someone need not to pay an overdue tax. Very general clemency. The only counterargument that may be raised is that no one ever understood the prerogative in that way. Could the Ministry of Public Finance challenge that decision? I would like to see that. But going back to criminal liability. The decision of our Supreme Court was not aimed to limit president in his rights but in a way indicated the red line and stated clearly – “let the courts do their job. When they are done with a case – then you may alleviate the consequences”. It is however interesting if one reads the US Supreme Court decisions on the temporal aspect of pardon. In an old case - Ex Parte Garland from 1866 (71 U.S. (4 Wall.) it was explained that “The power thus conferred is unlimited, with the exception stated. It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” Surprisingly despite the Gerald R. Ford’s Proclamation 4311 regarding Richard Nixon, there were no significant court cases on the preemptive pardon. It is interesting what would be the current position of the Court? But what seems to be quite obvious – despite any reservations present in the Polish case – it would be obvious that the Supreme Court is authorized to examine the details of a pardon in its operation in the field of administration of justice.

Creature of laws with divine power?

We must remember that AD 2018 presidential pardon may not be seen as some kind of a divine right of a monarch, but a traditional prerogative of a chief executive but embedded in a strict constitutional context of rights and obligations of both – state and citizens. If we vest the administration of justice in independent courts, we exclusively empower them with the right to decide about the law and individual liability.  One must not forget about the role of the victim which in different legal systems may vary, but it seems that the harmed party recently has become a significant figure in the criminal procedure. Another thing is the reasoning. Courts are obliged to provide the audience with their reasoning which may be later debated, evaluated and contribute to the evolution of legal culture. It is also a very basic obligation of the state to explain to the citizen why what happened to them. It is all about decency that has a very strong legal basis. How may we know that the decision of a public authority is not based on prejudice or some extralegal prerequisites? As Lord Acton once stated – “Power tends to corrupt, and absolute power corrupts absolutely.”

In the begining there is an idea...

Now and then legislators decide on drafting criminal provisions that are, despite all good intentions, bond to backfire. Backfire hard… But let’s start from the very beginning. It is quite clear for every criminal lawyer that legislator may criminalize behavior that is deemed wrong, harmful and undesirable. Criminalization of acts attacking specific legal values (recognized as particularly important both for the community in general and for the individual members of such community) derives its justification precisely from the special importance of these values and the need for their protection. In this sphere, legislators seem to have a sovereign, discretional power (except some rare cases when constitutional courts strike down particular statutes or its parts). Recently an interesting provision has been introduced by the Polish Parliament – one that has immediately led to not only controversy but also diplomatic tension between Israel and Poland. The ruling party has decided that there need to be a penalty for (what has been described as) defamatory statements claiming that during the WWII there were “Polish death camps”. Such statements are considered misleading because the use a geographical reference not only indicates the location of the camps but also (even inadvertently) implies the responsible parties (i.e., organizers). The issue in question seems to be rather well addressed nowadays. Despite all other endeavors of the Polish government and NGO’s aimed at eradicating such statements, the new measure for conducting such struggle weaponry is being developed. The really grave one – criminalization. Perhaps all governments consider issuing a ban on something like a magical way of solving any given problems. Sometimes such magic works, but this may not be the case. It reminds the American Dickey Amendment of 1996 providing direct ban on gun violence research (“none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control.”) as it eliminates a part of research and debate from the public discussion with a very questionable rationalization.

Then comes the draft text...

But let’s leave the politics for now. From the strictly legal point of view, the discussed Polish provisions may backfire in a way that (hopefully) has not intended by the drafters. So first, let’s see the body of the statute:

Art 55a of statue on Institute of National Remembrance (draft).

§1.  Whoever publicly and contrary to the facts attributes to the Polish Nation or Polish State responsibility or co-responsibility for Nazi-felonies committed by the Third Reich described in art. 6 of United Nations Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis ("London Agreement") signed on the 8th of August 1945 or for other crimes constituting crimes against peace, humanity or war crimes or in another way flagrantly diminishes the responsibility of actual perpetrators, is subject to penalty of deprivation of liberty up to 3 years.

§2.  If the perpetrator acts unintentionally is subject to fine or penalty of limitation of liberty.

§3.  The perpetrator of the prohibited act referred to in §1 or §2 does not commit the crime if he has committed this act within his artistic or scientific activities.

...and its interpretation

Can you see the real scope of criminal liability? It is quite difficult with all these requisites and vague references. So let’s try to dissect the provision to get a glimpse of the potential difficulties that a citizen, prosecutor, and a court may have while assessing one’s behavior. 1)       publicly –  it refers to a manner of action that makes it possible for the information to be received by a larger, not necessarily specified, group of people (i.a. on Facebook, Twitter, on a website, in a newspaper, etc.). Thus, private discussions are excluded. 2)       contrary to the facts – now it gets really problematic. First of all, who decides what the facts are? Sometimes facts intrinsically contain a qualitative or quantitative evaluation (“a large number of victims”, “grave violence”, “sadistic” etc.). In practice, during the criminal proceedings, some kind of an expert witness will be appointed to determine whether the information presented in a public statement is well founded in contemporary historical knowledge. How can we be sure that this historian is not biased or, even more so, is legitimately able to justify his opinion?  And what if facts can not be established because of the early stage of research? To what extent personal memories or opinions on historical events can be verified in such manner - imagine a layman writing on Facebook: “Before my grandpa passed away, he told me that his hometown had been plundered not only by the Nazis but also by some of his neighbors, mainly from Kowalski family”. Remember that the special prosecutor’s unit in the Institute of National Remembrance is supposed to indict. They are subordinates of Ministry of Justice, and the entire board of the Institute is politically elected by parliament.  Approach to the history (general outlook as well as the methodology of research) is strongly dependent not on merits but on the current political situation. As we can see – the facts are everything. The harder to determine them the vaguer the potential scope of liability may be. Another aspect of the said element of the crime – can a various opinion on well-established facts be deemed as “contrary” to the latter? An example “Kowalski family just stood and did nothing; they laughed when my family was shot by the Nazis. They were aides by their passivity and amusement”. Imagine that we have undisputed information that in fact, only Nazis did the shooting. Is the opinion on the Kowalski family as passive supporters contrary to the facts or not? In criminal law, many times we differ in our opinions what was the role of individuals partaking in a criminal endeavor. Were they only facilitating or maybe they were in fact co-perpetrators?  That is another crucial issue that is difficult to determine unanimously – is a legal assessment of an act an element of the facts of a case or it is just normative (not ontological) aspect? 3)       Polish Nation – this one should be easy, right? The nation is defined as “a large body of people united by common descent, history, culture, or language, inhabiting a particular state or territory” (oxfordictionaries.com). In its narrow literal sense, such a description fits only the entire community, not individuals. Now compare those two statements in the context that there is a noncontroversial establishment of facts that there were only Nazis in the area:

1. a) “Polish people helped Nazis to plunder our hometown.”
2. b) “Kowalski family helped Nazis to plunder our hometown.”

If one uses more general term due to the lack of knowledge of the name of the facilitators, does it imply the Nation as a whole? If so, in a case of uncertainty of personal data opposite to the nationality, shall one rather remain silent? Or maybe one should even make up a fake family name to immunize themselves? It does not sound rational. 4)       Polish State – another obvious element to interpret, isn’t it? The state means “the civil government of a country” (oxfordictionaries.com). Ok, but here is the question – do the actions of public officials translate into state’s actions? What should be a valid criterion for differentiation? If a ministry (secretary) within their authority and autonomy undertake some actions will it burden a state as a whole? Imagine a statement (contrary to undisputed facts) “Polish police helped Nazis to plunder my hometown.” Does it allow to claim that the responsibility burdens the State?  What level of decision making is required? 5)       responsibility or co-responsibility – here is one issue of pure criminal law. What level of participation constitutes a threshold? Passivity? The subsequent gain of a benefit? Providing general information? How may we determine the causal link between the action of the State or a Nation and an atrocity in question? Without any help from the legislator, we should remain on those complicity forms provided in international criminal law. Of course, it won't resolve problems regarding the proper establishment of a perpetrator (see above) but if we succeed we may have some legal tools to assess liability. 6)       or for other crimes constituting crimes against peace, humanity or war crimes – this is interesting. From a linguistic point of view, this part is independent from the first half of the sentence, so it is not limited to the WWII. It means that one may not deliver public statements not only regarding Holocaust (which is the core issue of beforementioned diplomatic struggle) but any activity of Polish Nation or State. Period. Not to mention that the definition of war crimes or crimes against humanity has developed and used to contain different elements recognized by the international law of the  50’s,  90’s and currently (see  D. Luban „A Theory of Crimes Against Humanity, Yale Journal of International Law 2004 pp. 95-97 and Draft Code of Crimes against the Peace and Security of Mankind with commentaries 1996 p. 47). 7)       in another way flagrantly diminishes the responsibility – another very vague element. Flagrantly is interpreted as the grave, extraordinary and transparent at first glance. That means any, even untruthful allocation of fault is excluded unless it is indeed flagrant. But as it was indicated above, politics regarding history is based on emotion. Historians and journalists not to mention laymen do not share the same sensitivity so that they may evaluate information quite different. Can there be an objective threshold achieved? One may doubt it. Moreover, this part of the provision is logically separated from its the first part, so it provides a general basis for liability on the erroneous allocation of fault regarding any crimes constituting crimes against peace, humanity or war crimes, not only those (falsely) attributed to the Polish Nation. One would be punished if i.a. claimed that Hutu tribe in Rwanda did not commit all those documented atrocities. Last but not least. The provision shows one more legislative downside – dyssynchronization of terminology regarding international law. It was mentioned above in the pt 6) that the concept of crimes against humanity evolved and its most up-to-date meaning provided in the Rome Statute of the International Criminal Court   differs significantly from that presented in United Nations Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis. The latter included the requirement that an act was committed in time of war or in connection  with crimes against peace or war crimes. This is not the definition anymore.

Unintentional lying?

However, the real peril stems from §2. What is “unintentionally” according to Polish criminal law? One without having an intent of commission of a prohibited act commits it due to non-compliance with carefulness required in the given circumstances, although he has foreseen or might have foreseen the possibility of its commission. As it can be noticed it is sufficient to establish that there is a trustworthy source of historical knowledge one was not familiar with while presenting their statement. Or it is also a crime when one erroneously assesses the allocation of fault and flagrantly diminishes one party’s responsibility. Should have known/might have foreseen is a sort of a killer requirement.

Academic debate will be debatable?

It seems that to limit the scope of application of the provision and exclude academic research, and artistic performance §3 has been introduced. The thing is that the prosecutor would have discretion in evaluating the artistic aspects of, e.g., a documentary film. The situation of an academic may be even worse – his capability to conduct research may be questioned by a prosecutor supported by another historian. But this does not exhaust the problem. Notice that there is no mention of education or journalism. Artists and academic can be wrong but journalists and teachers must not? Although the provision is in the drafting stage, it is a piece of very poorly written legislation. Either we interpret it broad that it would essentially kill any public discussion on history or in a narrow way that makes it inapplicable. One way or another this is a good example of how not to legislate.