Neither fountainhead of justice nor good Samaritan
The rulings of the Polish Constitutional Tribunal likening the President’s pardon power to a royal whim are wrong. In former monarchies, the king was deemed the “fountainhead of justice,” and thus could be said to have unbridled licence to interfere in its administration. In a modern state, the President does not play such a role, and in a democracy sources of justice are sought elsewhere. Therefore, the President’s pardon power cannot be understood so anachronistically.
But the assertion of the Supreme Court of Poland that the courts have a monopoly on the administration of justice, and therefore the presidential pardon is exclusively an act of humanitarianism and mercy, and may be applied exclusively to those who have been convicted in a final judgement, is also faulty, or at least not supported by sufficiently broad considerations. The act of pardon is a presidential weight on the balance of power. It is also a tool that serves the head of state to engage in the country’s political life—to wrestle (within the limits of the rules of the system) with the other two branches, especially the legislative.
In a modern state, to understand the function of the presidential pardon power it is worth looking at its history. The historical inspiration is best sought in the first modern republic: the United States of America. At the very end of the 18th century, the newly formed United States enacted a series of laws known as the Alien and Sedition Acts. They restricted immigration and criminalised unwarranted criticism of the federal government. In general, they consolidated and strengthened the federal power in the name of national security and under the pretext of the portended war with France. The Federalists were ardent supporters of the Alien and Sedition Acts, and the Democrats opposed them.
Several politicians and activists from the Democratic camp, including Matthew Lyon, a Vermont congressman with a colourful resumé, fell victim to those laws. He was sentenced to a short prison term and a fine. When Thomas Jefferson, a Democrat and opponent of the Alien and Sedition Acts, became President, he pardoned Lyon in a gesture that did not so much free Lyon from some draconian punishment in the name of mercy, as exert a symbolic and political significance and enable Lyon to continue his political activity. Later Lyon worked to repeal the Alien and Sedition Acts, and Jefferson’s pardon of him contributed to the political backlash against these laws.
In other periods of modern history and in other countries, examples of heads of state using the pardon power in a similar way are numerous. Today, especially in parliamentary democracies where presidents do not play a significant executive role, the pardon power is not only a prerogative of mercy, but also an important instrument for presidents to practise politics. It allows them to engage and, to some extent, still count in the political game. In doing so, it performs a function somewhat similar to parliamentary immunity. The pardon power allows the President to prevent a situation where a court judgment would eliminate a person from political life. The view that the presidential pardon power in Poland should also serve this function seems sensible.
This would argue for the President’s ability to exercise the pardon power to this effect, i.e. to protect a politician whose continued political activity the President cares about from a sentence eliminating that individual from political life (e.g. stripping them of their parliamentary seat). But in Poland, under current law, after a rather populist and probably not fully thought-out amendment to the Constitution and the Electoral Code stripped people convicted in a final judgment of an intentional, publicly prosecuted crime of their eligibility to hold public office, this is possible only by issuing a pardon before the person’s conviction becomes legally final.
In its high-profile resolution in case no. I KZP 4/17 regarding the President’s ability to pardon a person before a legally final conviction, the Supreme Court of Poland failed to recognise and consider this aspect of the problem. It mainly based its ruling on a grammatical interpretation of the provisions, on sparse and shallow references to history, and on a miserly analysis of the principle of separation of powers and checks and balances.
Admittedly, the court noted that during the work on the amendment in question, there were concerns that it could lead to the executive branch abusing its right to bring or not bring such charges, with the aim of influencing the composition of the parliament and the shape of political life. This is particularly relevant in a boomtime for poorly enacted laws which it is all too easy to run afoul of. But the Supreme Court did not consider whether, with the Constitution thus amended, the power to pardon should be understood all the more broadly, i.e. in a manner allowing the President to block the final conviction of a person whose continued political activity he cares about—and thus mitigate the effects of an overbroad regulation that practically excludes convicts from political life. In an era of general dislike and distrust of politicians, the call that “criminals should not sit in parliament” is catchy and popular. But the history of parliamentarianism cautions scepticism of this populist claim, and provides ample evidence that for the proper functioning of democracy, instruments enabling political activity by persons who have come into conflict with the law are useful. Such instruments include the presidential pardon power.
Without taking this into account, the Supreme Court opened a Pandora’s box. Objectively speaking, and leaving aside the feelings linked to this particular case, one has to admit that under the Polish Constitution, the argument by the Law & Justice party that the mandates of Mariusz Kamiński and Maciej Wąsik could not have expired does have some merit. This places a question mark over the legitimacy of the actions of the Polish parliament, which would have to muddle through without these two politicians at a time when, ironically, their mandates carry no weight in the current parliamentary arithmetic.
Did the judges of the Supreme Court have these dangerous implications of their judgment in mind when they reached their decision? Their ruling may prove a more poisonous pill than Law & Justice’s laws regarding the National Media Council and the National Prosecutor combined. It is certainly a warning against the grammatical interpretation of legal texts that prevails in Polish courts, possibly garnished with only a superficial and decorative analysis of the history, aim and function of the institutions established in the text.
Stanisław Drozd, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
