The purpose of the executive having the power to pardon is to stop judicial tyranny. It is a check on the judicature from another branch of government to stop arbitrary judicial decisions. President Bush commuting Libby's sentence was not for this purpose. it was political. There is an argument that there should be some check and balance on the executive's power in this area.

From the Cunning Realist:

We also know now that Congress must find a way to restrict permanently the executive's ability to grant clemency. It won't be easy. But the Libby precedent will make the pardon process little more than a get-out-of-jail-free card for rogues willing to commit crimes involving war and national security with the tacit understanding that, if discovered, they will do less time behind bars than Paris Hilton.

The key, of course, is timing and the executive's lack of accountability. At the very least, the White House's unfettered ability to intervene after a presidential election and before the next administration takes office must be eliminated.

In Australia pardons are within the domain of the executive, but because it is not explicitly spelled out and there is little precedent or convention to guide it, there is a wariness of doing so. As the recent episode of journalists being prosecuted in Victoria showed.

It comes after Victorian Premier Steve Bracks said he would consider such a request, although he warned that pardons were rare, with the last example believed to have been in the 19th century.

"That will be treated on its merits and we usually receive legal advice on those matters," he said.

"Pardons are an extraordinary, rare thing and have occurred very infrequently over the history of this state, but they will be treated on the merits of the case presented to the (Victorian) Attorney-General (Rob Hulls)."

Because the Governor is the one who actually does the pardon, but acts upon the advice of the Executive Council, it would be the political executive asking for it.

I think I prefer the Australian system here, because the judicial system is trusted to pass just sentences within the bounds of legislative requirements.

However, once there is a pardon for political reasons, the executive cabinet will have asserted sovereignty over the pardon process and there will likely be a flood of them for political reasons - especially in an executive that is acting illegally and getting hauled infront of the courts.

The US system is predicated on checks and balances where the Westminster is not - instead 'responsible government' is supposed to suffice. Consequently there is going to have to be some kind of further check on the pardoning power in the US system to stop political pardons and commutations. The obvious choice is to have the Senate approve the pardon.

Another method would be to form a group of sortitionists, a citizen body, which must vote a super majority on each pardon/commutation. Then again, that is what the jury was for a court case (and a jury was who found Libby guilty).

It might be wise for Australia and the States to also institute a similar check and balance; just in case.

More Reading on Judicature

• Judicature
• Check and Balance
• Executive
• Pardon
• An Explicit Constitution
• Judicature as Specialist
• Andrew Murray on a Judicial Committee
• British Judicial Appointments Commission
• Check and Balance on the Judicature
• Common Law as Judicial Made Law