General de Gaulle, President of the Republic, and the right of clemency

The right of clemency is a personal prerogative of the head of state empowering him to commute or to set aside wholly or partially the enforcement of a sentence pronounced by a court of justice. It is laid down in Article 17 of the Constitution of 4 October 1958: "The President of the Republic has the right of clemency". In effect, he is sole judge of whether to commute or suspend a sentence. Like Saint Louis beneath his oak tree, he dispenses pardons on a discretionary basis to his subjects, guided in the final analysis only by his concern for the general good. 

 A prerogative of sovereigns, the right of clemency was initially vested in a sacred authority, i.e. in the divine. It later developed within a context of independent public authority which received its final consecration in the monopolisation of the right by the state. Even within this monopoly, it remains an area which can only be the preserve of the head of state, concerning as it does the life or death of a condemned person. As a tradition that has come down through the ages, it stems from the virtuous logic that a head of state must hand down to his people: the rigour of the law must sometimes give way.

Pierre Corneille, in his play "Cinna, or the clemency of Augustus", depicts clemency as the greatest of princely virtues and as a shining manifestation of what Aristotle described as the highest moral ideal, magnanimity. This is why the Empress Livia calls upon Augustus to consider the benefits of clemency, even in the terrible circumstances of a conspiracy: "That he may, by granting pardon, affirm his power, And that clemency is, indeed, the most noble sign, By which a true monarch shall be made known to the world". 

From the symbolic standpoint, the right of clemency plays a certain part in the expression of presidential supremacy. Unlike under the previous regime, the right of clemency is no longer vested in the Supreme Council of Magistrates, but depends wholly on the will of the President. Despite fierce opposition from two members of the Consultative Constitutional Committee (Messrs. Chazelle and Fourcade) anxious to see it retained by the Supreme Council of Magistrates, the fine and noble prerogative was to be given exclusively into the hands of the President.

Charles de Gaulle was also a man of feeling. Using his prerogative judiciously in the matter of capital punishment, he commuted 91.7% of all capital sentences. From 1959 to 1969, of 146 death sentences pronounced by the assize courts only 12 were carried out. When examining political crimes, General de Gaulle took into account reasons of state only (to use his own expression). As President of the GPRF (Provisional Government of the French Republic) on the Liberation, he showed himself severe and rigorous against ideological opponents of the democratic regime (Pierre Pucheu, Pierre Laval, Joseph Darnand, Robert Brasillach). He showed clemency, however, towards those who had been overtaken by events and believed themselves to be acting for the common good or for an illusion thereof, such as Marshal Pétain.

In contrast, when national reconciliation at any price became the most important issue (in particular for the ratification of the Treaty of the Elysée with Chancellor Adenauer in 1963), he showed much greater clemency. Those who had acted subversively during the Algerian crisis were not treated with implacable severity, in particular Generals Challe, Zeller and even Jouhaud, pardoned at the last moment. Even though the General believed that execution would condemn the terrorist attacks of the OAS for ever, Justice Minister Jean Foyer was aware that "to refuse clemency would be seen as a reaction of pique and spite quite alien to the character of the General, and which would tarnish his glory". There were four executions, including that of Bastien-Thiry, for the men who had resorted to urban terrorism in the name of the OAS. Immediately on returning to power in 1958, the General pardoned the hundred or so Algerian prisoners languishing in military prisons under sentence of death. 

 In civil cases, two principles governed his attitude. He automatically pardoned minors and women, the latter because they are the transmitters of life, and he sought inspiration only in the secret heart of his conscience.

Certain legal minds believe that the right of clemency should not exist in a Republic, and that it undermines the decisions of the judicial authorities. In fact, it does nothing of the sort since clemency in no way interferes with the sentence, but merely suspends its effects. Beaumarchais said, "When evil has all the boldness, good must have all the courage". The General was a man of great impartiality, in search of social justice and human dignity. In his eyes, the use of the right of clemency bore witness to the equity of the state. Clemency is undoubtedly the greatest prerogative that a head of state may exercise, and it is important to recognise that General de Gaulle restored to it all its former nobility.

Anne Freyssinier

Doctor of Law