Presidential Pardon in Tunisia: An Evolving Instrument of Reform?


2014-08-28    |   

Presidential Pardon in Tunisia: An Evolving Instrument of Reform?

On July, 24, 2014, the anniversary of the Declaration of the Tunisian Republic, Tunisian president Moncef Marzouki pardoned and set free 1,630 convicted prisoners, including 1,201 people who had been imprisoned for using drugs and who were first offenders not implicated in any other offenses. One man sentenced to death had his sentence commuted to life imprisonment. The pardon did not cover serious offenses, especially those related to terrorism, smuggling weapons and ammunition into the country, dealing drugs, murder and serious moral offenses.

It was noticeable that the presidency's insistence on regularly using this mechanism, in spite of objections, was accompanied this time by an attempt by the presidency to use it to reform the legal system as a whole.

First: Insistence on the Regular Special Pardon

Article 77 of the new Tunisian Constitution says that the special pardon is one of the prerogatives of the president.[1] The reference comes at the end of the list of the president's prerogatives and is briefly mentioned as one of his responsibilities. The 1959 Constitution, on the other hand, specifically stated that the special pardon was “the president's right”.[2]

The difference in the way the two constitutional articles are formulated shows the change in the status and concept of the presidential pardon. The change appears to be in line with objections to executive interference in judicial verdicts through the mechanism of the pardon, whether in international legal experience or within the local legal and human rights framework. Whatever the case, the presidential pardon is once again a part of the scene because of criticisms of the way it has been applied by the first elected president of Tunisia after the revolution. Since he first took office, Marzouki has made a point of issuing a presidential pardon on every national or religious holiday. The number of people pardoned under Marzouki has been unusually high, amounting to more than 15,950 prisoners in one year, and the pardons have been unusually frequent.[3]

There have been some negative reactions to the allegedly arbitrary use of the presidential pardon, especially after the media reported a level of recidivism among the prisoners pardoned and stated that people convicted of serious crimes had been released. They said that the pardon took no account of the character of the convicts and that as soon as they came out of jail, some of those pardoned had committed serious crimes – including crimes affecting national security. The criticisms have been so harsh that the presidency is reviewing the way it has used the pardon. This has been reflected in the number of prisoners pardoned, and in stricter criteria that take into account the character of the prisoners and the seriousness of their offenses.

The statement on the pardon issued on January 14, 2014, the anniversary of the revolution, suggested a radical change. It said, “The presidency of the republic recalls that the presidential pardon is a procedure that is based on the spirit of mercy, and that pardons are for those who have proved through their conduct in prison that they are ready to return to society after serving a minimum proportion of their sentences. The presidency also notes that the criteria for a presidential pardon are reviewed from time to time, subject to changes in society.” There was a definitive shift toward setting restrictions on the Republic Day pardons, disqualifying prisoners convicted of “serious crimes, especially those related to terrorism, bringing weapons and ammunition into the country, drug dealing, murder and serious moral offenses”.

By setting these limits, the presidency has created a constitutional norm in this field.[4] However, excluding particular crimes from eligibility for presidential pardons, such as serious crimes and crimes that are especially shocking or that affect national security, means that for pardons that lead to release from prison, first offenders are privileged over repeat offenders.

The Tunisian presidency's attachment to the use of the pardon appears to be a response to pressure from the prisons administration. In the eyes of the people who run the prisons, the pardon has become an instrument to reduce overcrowding in prisons. It has also become a means by which the prisons’ administration ensures discipline among the prisoners who are cooperative with the authorities in the hopes of being included on the list of prisoners pardoned, either in the form of a release from prison or of a reduced sentence.[5] Justifying pardons as a makeshift remedy for the penal system is unlikely to convince opponents of the practice. The latter insist that pardons are part of a system that does not recognize the independence of the judiciary. Yet, the focus on drug users in the Republic Day pardons and the pardoning of someone on death row threw light on the possibility that pardons can play a reformist role in penal policy, steering legislative policy in a way that is conducive to evolution in the approach to punishment.

Early Signs of Change in the Penal Treatment of Drug Users

The decree on the Republic Day pardons included a clear reference to the fact that the vast majority of those who benefited from the pardon were people who had been imprisoned for a first offense of drug use, and who had not been implicated in any other crimes. This category accounted for 1,201 of the 1,630 prisoner pardoned. The use of the pardon for this category of crime comes in the context of repeated demands by rights activists. These activists say that the sentences imposed for drug use are harsh and should be amended to reduce the penalties for first offenders as a first step toward improving the approach toward them, and recognizing that they are also the victims of drug crimes. The government had preempted the president by announcing that it was already working on a draft law that would allow the courts to be more lenient toward defendants in drug use cases, but the process of referring the draft law to parliament has been held up and the slow pace of work in parliament makes it unlikely that the law will pass soon.

On the other hand, the pardons announced in July serve as a rapid and effective measure to deal with the new cases that have arisen, and as a message that might encourage judges in the future to avoid imprisoning first offenders in drug use cases. This is especially the case as such people might be able to take advantage of a presidential pardon pending legislative reform. The Republic Day pardons confirm that the official attitude towards drug crimes has started to change, while it also suggests that the pardon may have other uses as far as the death penalty is concerned.

Pardoning People Sentenced to Death as an Activist Procedure

It was noticeable that the pardons announced on Republic Day include the commutation of a death sentence. Death sentences require special requests for a pardon and the president is supposed to express his opinion on them. What makes the subject even more important is that this pardon was issued while the national constituent assembly was discussing a draft terrorism law that creates new crime categories that call for the death penalty. Although the judiciary insists on applying the death penalty, the human rights movement continues to press for the abolition of the death penalty in state institutions.

In this respect, new functions for the presidential pardon have come to light: it has been used as a means to mitigate the harshness of the letter of the law and as an instrument for rights activism to abolish the death penalty. Thus, the president's prerogative to pardon, which former French President Nicolas Sarkozy described as the legacy of a former regime that should no longer be in force, has been turned into an instrument for developing institutions.
 

This article is an edited translation from Arabic.

 

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[1] Article 77 of the Constitution reads: The President of the Republic is responsible for representing the state and has authority to lay out general policy in the fields of defense, foreign relations and national security related to protecting the state and the national territory from internal and external threats, after consulting the head of government. He is also responsible for:

 

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