THE PRESIDENTIAL PARDON FROM THE PERSPECTIVE OF LEGAL JURISPRUDENCE

"Society exists to promote the moral good of its members, therefore the Law should be used to punish immorality as such, even though neither the individual nor society is harmed by it." Plato

While this radical assertion as posited by the heroic Philosopher appears to be positive to the sense of some groups of Jurists which are referred to as 'Naturalists'. An influential percentage of Jurists disagree on this position, and are of the dissenting belief that there is a clear difference between Law in its Expository sense (Law as it is) and it’s Sensorial Sense (Law as it ought to be). They further asserts that what should be the sole concern of the Law is nothing but the former (Law as it is), while the latter (Law as it ought to be) never escaped being subjected to their criticisms of immeasurable volumes. This group of Jurists refer to themselves as 'Positivists'.

The Classical Analytical Positivists such as Jeremy Bentham and John Austin taught that the Law is not in any manner concerned with concepts such as Morality, Sociology of Law, and Law from the Historical Perspective etc. They instead perceive the law as "the Command of the Sovereign to the Subjects which must be obeyed".
It is not so much surprise that John Austin wrote:
"The existence of Law is one thing, its merit or demerit is another. . . a law which actually exists is a law though we may happen to dislike it".
He further stated to elucidate his point:
"The science of Jurisprudence is concerned with Positive Laws, or with Laws strictly so-called, as considered without regard to the goodness or badness".

The unnatural nature of his postulation cannot be disconnected from the unpopularity and non-acceptability of his teaching. It also cannot be disassociated from his premature resignation from the University of London in 1832. Austin died a disillusioned man after some years.

THE PROVISIONS OF THE LAW AND THE PRESIDENTIAL PARDON
Sections 175 and 212 of the Constitution clearly provides for Prerogative of Mercy for both the President and the State Governors respectively.
And it can be easily concluded without much ado that Section 175 was drafted to confer on the President an unrestricted authority to exercise the power of pardon in relation to offences created by an Act of the National Assembly.
It is an unworthy Legal debate that the Council of State, as created by Section 153(1)(b) of the Constitution, and saddled with defined advisory responsibilities as contained under Paragraph B Section 6(a)(ii) and (b) of Part I of the Third Schedule to the Constitution, which includes (Prerogative of Mercy), were not fully aware of the entire decision of President Jonathan.
There is infact no regards to the provisions of Section 159 (1 & 2) of the Constitution which says that the quorum of the council of state meeting shall be not less than one-third of the total number of members of that body at that meeting, and that a member of the body shall be entitled to one vote. It is however still not a legal issue that former President Olusegun Obasanjo, and three former military Heads of State, Muhammadu Buhari, Ibrahim Babangida, and Abdulsalami Abubakar were not at the Council of State meeting, where the President claimed to have 'consulted' on the issue of the pardon.

Judging by the Law sensu strictissimo, President Jonathan has not acted ultra vires his power as a President. It won't be wrong to hastily conclude that the Council of State on the issue of Pardon is but a mere cosmetics.

SOCIAL MORALITY AND THE LAW
The positivists certainly do not care about the Moral standard, Sociological effect and the goodness or badness of any Law. All they want to know is that; it is the Law, and so be it.

I need to quickly state without any hesitation at this juncture that such an extreme and undiluted view can never appear to be in the best interest of 'social justice', in which should be the most sacrosanct objective of the enactment of any Law.

The Late Learned Professor of Jurisprudence and International Law; Funso Adaramola OON, a Sociological Jurist as he described himself wrote:
"... although the purpose of law is justice, that should not be understood to mean bare justice according to law, but should also include social justice".

From the reasonable citizen's perspective of morality as laid down by Lord Delvin, there is no ambiguity in the fact that the recent pardons the President dashed out to the celebrated ex-convicts, especially that of DSP Alamieyeseigha has vehemently failed to be justified by all moral standards. His crime was beyond a Public Immorality, it was infact Judicially noticed Internationally. His criminal act is not unknown to the most popular Wikipedia.
Not at a time when the nation is under a classical control of corruption. If the coinage 'CORRUPTOCRACY' will ever finds its way into the lexicon, the current state of the nation is the fittest for the accurate lexical definition of the word.

In Criminology, the prevalence of a particular kind of offence calls for a more severe punishment and not a pardon. It is on this note I unreservedly agree and join the struggle of those calling for capital punishment on corrupt practices in Nigeria. A nation where corruption has not only found as a relaxation abode, but has also become the eminent Lord of the time.


CONCLUSION
It is on this basis which I prefer to describe as 'social morality', that I unapologetically disagree with the views and postulations of the positivists who sees the Law as an evil that must be submitted to, regardless of its anomalies. I'd rather incline myself with the Naturalists that perceive the Law as a translation of Morality.

I give utmost respect and consideration to the assertion of Lord Delvin when he states: "An established Morality is as necessary as good government to the welfare of society... There is disintegration when no common morality is observed, and history shows that the loosening of moral bonds is often the first stage of disintegration".

Leaving aside the Philosophical arguments on Law and Morality. Isn't the President's decision a violation of the Sacred Oath of Office of the President? wherein the President swore that "he would strive to preserve the Fundamental Objectives and Directive Principles of State Policies, that he would not allow his personal interest to influence his official conduct or official decisions, that he would to the best of his ability preserve, protect and defend the Constitution, abide by the Code of Conduct contained in the Fifth Schedule to the Constitution, and that he would do right to all manner of people, according to law, without fear or favour, affection or ill will".

Finally, But for some few exceptions, I see the entire concept of Prerogative of mercy as unjust and discriminatory against other ex-prisoners convicted of fraud and fraud related offences, who might not have the opportunity to be favoured or even known by the President.
I therefore pray to the legislators to take into consideration, an urgent need to review and amend the entire Constitutional provisions guiding the granting of prerogative of mercy. This will make the process stringent in application, so as not to be easily instrumentalised as was recently. A titanic misuse of the Law against the will of Justice I must assert.



Abdul Hasib Suenu is a Final Year Student of Law in the Lagos State University.
Twitter handle: @Abdul_Hasib
Email: hasib130@yahoo.com