In re Clemency Request and Review Act 2025 SDSC 1
In re Clemency Request and Review Act 2025 SDSC 1
| Date of judgment | 18th February 2025 |
|---|---|
| Justices | Chief Justice Alexa Justice Syndicality Justice TheLittleSparty |
| Held | The Clemency Act is unconstitutional |
| Ruling | 3-0 |
| Applicable precedent | Inferior courts must be headed by a judge, 2 |
MAJORITY OPINION by Chief Justice Alexa
(with Justice Syndicality and Justice TheLittleSparty agreeing)
[1]. Both the petitioner and the respondent presented arguments as well as there being multiple amicus briefs submitted.
[2]. From the arguments of both sides, it would appear that the main issue affecting the constitutionality of this act is the issue of the president having a part to play in the granting of pardons. The Court, on the other hand, sees this as an important, but ultimately secondary issue. The main issue in the eyes of the Court is that of the Clemency Review Board, namely the potential sidestepping of the primacy of the courts and the wielding of judicial authority by a body other than the courts. The courts are clearly defined by the constitution in Article 7, Section 1 as consisting of the Inferior Courts and the Supreme Court. We must first determine if the Clemency Review Board is indeed a court. The respondent states it is a court, as it is created by the legislature, but this is not a definition for a court mentioned by the constitution. We can quickly rule out the possibility of it being the Supreme Court as that must be composed of three Justices as per Article 9, Section 1, while the Clemency Review Boards are not. We can also rule out the possibility of it being an Inferior Court as the constitution mentions a presiding judge as a part of an Inferior Court, per Article 8, Section 3, and the Clemency Review Board lacks this, instead being composed of representatives of the judiciary and members of the public per Article 5, Section a of the act. With this we can say that the Clemency Review Board is not a court as described by the constitution and as a result, it is therefore unable to legally wield judicial authority in the form of power over criminal punishment through clemency and pardons.
[3]. We now turn to the issue of the president with this knowledge in mind. For this we have many arguments to look at from both the petitioner and the respondent. The petitioner argues that the president does not have the power to grant appeals as they say this was established in In re Executive Orders 23 & 23-A [2022] SDSC 1 and that the president having involvement in the clemency process is an overstep of executive authority. In response to this, the respondent argues that the power of the president to request the Electoral Commission to hold a referendum on the appeal for a full pardon by a clemency applicant is no real power at all, as they say that the president could be prosecuted under abuse of discretion for denying an appeal without citing proper cause. The respondent also claims that In re Executive Orders 23 & 23-A is mostly irrelevant in this case as it is concerned with the use of executive authority to grant pardons but leaves open the possibility for a law to give a way of granting pardons.
[4]. The Court agrees and disagrees with both the petitioner and the respondent on different points of this matter. Firstly we must deal with the matter of the In re Executive Orders 23 & 23-A [2022] SDSC 1 ruling. In that ruling, the Court upholds that executive authority is not a basis for a pardon, as that is a judicial authority. However, it is not completely relevant to this matter as the petitioner sees it, for executive authority is not the basis of the president’s role in the pardon process of requesting or denying a referendum for an applicant. That said, this does not change the fact that the president should have no role in the granting of pardons, as the office of the president is not a court for the same reasons that the Clemency Review Boards are not courts, and pardons are an act of judicial authority as they deal with criminal punishment as In re Executive Orders 23 & 23-A states.
[5]. With all this in mind, the Supreme Court sees no option but to declare the Clemency Request and Review Act unconstitutional and strike it down in its entirety.
[6]. The Court would like to state that this judicial review is concerned only with the constitutionality of this act and not anything beyond that, including the quality of its writing and any other potential issues the petitioner may have.
