STOSOWANIE PRAWA ŁASKI W ŚWIETLE KONSTYTUCJI RP
PRESIDENTIAL PARDONING AND THE POLISH CONSTITUTION

Summary/Abstract: Article 139 of the Polish Constitution provides that the President of the Republic “shall have the power of pardon”, a notion that in contemporary Polish constitution doctrine is interpreted in more ways than one. The pardoning practice to date seems to favour a narrower approach: the acts of clemency set aside or mitigate the imposed punishment, or annul other consequences of a sentence. But speaking against the narrower interpretation is the following wording of Article 139: “The power of pardon may not be extended to individuals convicted by the Tribunal of State.” What it boils down to is a constitutional delineation of the limits to the pardoning capacity of the president, whose powers must not be curtailed by a presumed existence of curtailment other than laid down in the constitution. The lawmakers have defined the power of pardon in such a way as to rule out any linkage between the presidential exercise of this power and the discretion of any other organs of the executive or judicial branches of government. On the other hand, pardoning must not be arbitrary, incomprehensible to the public or offending its sense of justice. Arrangements aimed to shield the practice of pardoning against hypothetical abuse could involve a greater deal of transparency in the pardoning procedure. The drive towards making pardoning more open has been triggered by the head of state politically controversial decisions in this respect. However, while seeking to reduce the risk of such decisions being taken in the future, we may force convicted persons into a Hobson’s choice between publicly disclosing one’s personal information in the hope of getting a pardon and abandoning efforts to win clemency. Many legal arrangements restricting civil rights and, consequently, robbing man of his dignity system from various kinds of human frailties; some have their source in a pathological exercise of power. Cases of the latter kind should be treated with extreme caution and scepticism.

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