Public Prosecutor Should Have No Role in Pardon
HAYAT welcomes the proposal to separate the roles of Attorney General and Public Prosecutor (PP), but cautions that the proposed amendment should not include the Public Prosecutor in the clemency process under Article 42 of the Federal Constitution.
The power of pardon within the Federal Constitution is one of the few and limited avenues for the prerogative of mercy to be exercised. A pardon can be a means to address an inadvertent injustice due to changes in law and policy, a means for compassionate release for persons no longer suited to serve a prison sentence, or a means to provide flexibility and mercy within the criminal justice system in exceptional cases.
The Public Prosecutor plays the unique role of determining and leading public prosecutions. They should not have an additional role of determining whether any persons ought to be considered for a pardon as part of the Pardon Board.
The Public Prosecution represents a different stage of the criminal justice process. They determine whether a person shall be prosecuted, and if the prosecution were successful, they would advocate for a more severe sentence. With this role and responsibility assigned to them, having them in the Pardon Board would inevitably be a conflict of interest.
Further, when a person seeks a pardon, they are not required to have legal representation, nor are they permitted to present any legal argument to the Pardon Board. In contrast, the presence of the Public Prosecutor would inadvertently provide a representation for the prosecution without offering the benefit of legal representation for those seeking a pardon.
Within the proposed framework, it would be more appropriate for the Attorney General, who shall then be the government's advisor, to maintain its role under Article 42.
Considering the potential impact on the criminal justice system as a whole, HAYAT calls on the government to seek public feedback and review the proposed constitutional amendment before the matter is put to a vote.
