The political responsibility for Royal pardons in Belgium during the 19th century (1830–1900)

Abstract

AbstractIn Belgium, the Royal Prerogative of pardoning convicted criminals was legally embedded in the Constitution of 14th February, 1831. It allowed the King to reduce a sentence or to grant a discharge of a sentence given by a court. Any Royal decision to pardon had, however, to be countersigned by a member of the Government, who took on the political responsibility of the decision towards Parliament. In most cases, the task fell upon the Minister of Justice. During the 19th century, in both Houses of the Belgian Parliament, the Minister of Justice was repeatedly questioned about the way the prerogative of pardoning was exercised. This usually occurred when a death sentence had been commuted to a lesser sentence. In such cases, members of the Chamber of Representatives or of the Senate would ask for an explicit justification of a particular pardon. Only exceptionally would a Government Minister be challenged about the legality of a decision either granting or refusing a pardon. Because of the constitutional convention which prevents exposing directly the political position of the King, Jules d'Anethan (Minister of Justice 1843–1847) defended the Minister's right to refuse to give any reasons for a decision regarding a pardon. He only acknowledged Parliament's right to question a Minister about his general policy on pardons. In his view, it was not within Parliament's powers to ask a Minister of Justice why a pardon had been granted or refused in a specific case. That view tended to limit considerably a Minister's responsibility for Royal pardons: it became no more than an empty shell. Another Minister of Justice, Théophile De Lantsheere (1871–1878), took an opposite view. He refused to state his general policy on pardons, but he accepted to explain the specific reasons why a Royal decision granting or refusing a pardon had been made. In his view, a pardon was in the first place a matter for the Minister's conscience. Parliament was therefore entitled to assess his particular actions. However, in the line of his predecessors' and successors' view, he believed that the reasons why the King had insisted on a pardon or refused to grant a pardon should not be mentioned to Parliament. Pardon was an issue between King and Government, not between King and Parliament. As the saying goes in Belgian constitutional law: The Crown should never be laid 'bare'.