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OPINION: The prerogative of mercy: Examining the President’s grant of respite to his Minister of Finance

by Attorney-at-Law Vivian Williams

If courts which are instituted to determine what justice is between man and man may not enforce the private rights to which they find the litigants before them entitled, the great purpose of government will be unattained and our republican system will prove to be a lamentable failure.” – (U.S. 8th Circuit Court of Appeal)

As the sun rose in Georgetown, Guyana’s capital, on July 8, 2019, the country’s President, Brigadier David Granger, was in a predicament. He needed to rescue his Minister of Finance, Winston Jordan from imprisonment for contempt. Jordan started the day praying for mercy after disobeying a court order that compelled him to pay more than 2 million US dollars to Dipcon Engineering Services to satisfy a judgment against the state. Failure to satisfy the judgment by the end of the day would land the Minister in jail for 21 days if his prayer for Presidential pardon was not answered.

As the keeper of the State’s purse, Jordan’s disobedience escalated tension between the Judiciary and the Executive. His predicament means that an Executive that was defeated in the legislature and now in a state of diminished capacity, was picking a fight with the judicial branch of government. Towards the end of the day, as the sun was drifting back to its resting place and the jailing of a defiant Minister of government loomed larger, the President granted a respite, carved out of his prerogative of mercy.

The President’s grant of respite under the circumstances was an unusual flexing of executive muscles. It placed the President in murky waters and the enforcement of private rights on the edge of a cliff. Pardons for contemners have always been minefields Executives avoided. In this case, the implications for President Granger’s legacy and the country’s profile as a destination for private enterprise could be immeasurable. Therefore, it is reasonable to ponder aloud, whether President Granger was fully briefed of the minefield he stepped into.

A Respite or A Nullity?

While it is well established that the prerogative of mercy extends to the offense of contempt of court, all acts of contempt cannot or should NOT be pardoned. It is well settled at common law and in jurisdictions across the world, that the discretion of an Executive to pardon extends to criminal contempt not civil contempt. Indeed, the Guyana Constitution expressly restricts the President’s prerogative of mercy to criminal offenses.

Therefore, the issue is whether the Finance Minister’s conduct constitutes civil or criminal contempt. The President might have been guided by the nature of the penalty rather than the purpose of it. Civilized democracies do not regard contempt to be criminal merely because incarceration is imposed as punishment. It is the purpose of the punishment rather than the character of the act or nature of punishment that is the deciding factor. See 25 Harvard Law Review 375 and the English case of In re Freston, 11 Q.B.D. 545. In Shillitani v United States, the U.S. Supreme Court declared that though incarceration is for a definite period, the contempt is civil if it is intended to coerce compliance. In the case of Minister Jordan, the term of confinement was clearly imposed to coerce compliance and in fact, was contingent upon non-compliance.

The U.S. Supreme Court adopted the common law approach that deems contempt to be civil when a contemner refuses to do that which he is ordered to do, and criminal when the contemner does that which he is forbidden to do. Gompers v. Bucks Stove & Range Co., 221 U.S. 48. The distinction is made between acts that detract from the dignity and authority of the court and a refusal to do justice to other parties. The U.S. 8th Circuit Court of Appeals sums the rule up poignantly, noting that:

…an order committing a defendant for contempt in refusing to pay a fine, or to obey an order made in a civil suit for the purpose of enforcing the rights and administering the remedies of a party to the action, is civil and remedial, and not criminal, in its nature, and does not fall within the pardoning power of the executive.”

The common law rule that has emerged with respect to Presidential pardons for contemners is that when the conduct at issue interferes with the enforcement of a decree, whether affirmative or negative, it is civil contempt and punishment is remedial. On the contrary, when the act strikes at the discipline and efficiency of judicial authority, it is criminal contempt and punishment acts penally. See In re Freston, L. R. 11 Q. B. D. 545; and Harvey v. Harvey, L. R. 26 Ch. D. 644.

Understanding the Rationale for the Prerogative of Mercy

The prerogative of mercy emanated from the Crown as the King reserved the discretion to grant reprieve from injury against the Crown itself. The underlined reasoning is that the Executive is the repository of the rights, interests and property of the Crown and the public. Therefore, discretion inheres in a President as the custodian of public property and interest, to grant respite from wrongs committed against the State. Because criminal offenses are deemed to be crimes against the state, the Executive has discretion to pardon these offenses.

However, the President is not a repository of private rights, property and interests. These rights are guaranteed against the state itself. Therefore, the prerogative of mercy does not extend to conduct that impacts private property and rights. This is the rationale that excludes civil remedies from the power to pardon. It is the dichotomy courts use to determine whether a contempt is civil or criminal. In rebuking the Executive, nullifying a grant of reprieve and throwing the contemners in jail for obstructing the enforcement of private rights, the U.S. 8th Circuit in In re Nevitt declared that:

—a proceeding instituted for the purpose of protecting and enforcing the private rights and administering the legal remedies of the judgment plaintiff… whatever the authority of the President may be to pardon for a criminal contempt, he is, upon principle and upon authority, without the power to relieve from either fine or imprisonment imposed in proceedings for contempt of this character”

Further, the U.S. Supreme Court has held that the powers of the President to grant reprieves and pardons of offenses does not grant him the authority to infringe and destroy civil and private rights. Guyana hasn’t confronted this issue before so its jurisprudence in this area has not taken shape.

Executive Discretion and Private Rights

The general principle of law that has developed over time in other jurisdictions, is that any discretion granted to the Executive, regardless how absolute it sounds in text, is confined at the point it intersects and touches private rights. We should view executive discretion as a stream that is constrained by the shores of individual rights. Courts have extended this heightened vigilance in limiting the reach of Presidential pardons for contempt that affect private rights.

Therefore, in nullifying pardons that affect private rights the U.S. Supreme Court has held that the President of the United States “has no … power to deprive private citizens of their lawful rights or legal remedies without compensation”. If Presidential pardons are allowed to extend to the coercive powers used by courts to enforce private rights, some of the consequences that may flow are as follows:
  1. Any subpoena directed to a state agency or officer could be ignored if the Executive believes it would be affected by revelations that may flow from compliance.
  2. The State could refuse to return private property when directed by a court order and such willful noncompliance could be shielded with a presidential pardon to the detriment of private rights.
  3. The State itself, will determine without consequence, which judgments against it, will be honored and which will be dishonored.

The principles on which the prerogative of mercy is founded do not support use of discretion in any of the forging circumstances. As part of the enforcement of fundamental rights and guarantees, individuals may rely on the coercive powers of the court. Therefore, courts have insulated individual rights from interference by the Executive by shielding them from the prerogative of mercy that is vested in the Executive. To put the enforcement of private rights within the reach of Executive discretion subverts those rights to the mercy and discretion of the President.

The law is without precedents that permit a government to infringe private rights by flouting court orders issued to enforce them. President Brigadier David Granger has therefore created a new precedent that expands boundaries of executive discretion. His interpretation of and application of the prerogative of mercy, places enforcement of private rights at the discretion of the President. There is great disharmony between the President’s application of the powers of the prerogative of mercy and the guarantee of inalienable rights of private citizens. The essence of the constitutional guarantee of private rights is that those rights do not have to find favor in government to be enforced against it.

No one should expect a President to sit on his hands and watch his Minister of Finance thrown in jail for failing to honor a judgment against the State. Yet it is not prudent for the President to save his defiant Minister by placing himself in collision with fundamental rights guaranteed in the Constitution.

Subverting the enforcement of private rights through the prerogative of mercy cannot even be supported by economic reasoning. As an economist, Mr. Jordan ought to be aware that the spin-off effect from resorting to respite from the President to evade paying the judgment, will cost the state a hundred times more than the judgment amount. Moreover, the actions of the President may give rise to further litigation consequences that could result in treble damages. At this moment of history, with the country on the cusp of an economic transformation and in the midst of election season, you can’t help wondering aloud, who advised the President to walk into this minefield. There must have been a different road to salvation.
Vivian M. Williams is a New York State and federal attorney who dedicates lots of attention to privacy and media law matters. He is also a former Guyanese journalist.