December 29

A pardon for former judge Marcus Einfeld? Yet another reason to become a politicians’ republic

Reasons advanced to remove the Crown from our constitution have included improving the economy, impressing Asia, encouraging the arts and avoiding being a laughing stock overseas. The latest argument is that with a politicians'  republic we could enjoy the privilege of seeing a republican Head of State pardon – in his or her absolute discretion – not only those convicted of crime, but those suspected of criminal activity.

Thus when President Nixon resigned in 1974, he was controversially pardoned  by his successor, the   former Vice President, Gerald Ford. A video of President Ford announcing the pardon follows, with an extract from the pardon. (The full pardon is posted at the foot of this column.)


 The powers of an American President are extraordinary, as he is not only both the Head of State and Head of Government.

He is, to a considerable extent,  the government. This is seen most clearly when he travels. There is no acting President back in Washington; all of the panoply and apparatus of government travels with this “elective monarch”, as Theodore Roosevelt once explained his position.

He is not a constitutional monarch as we understand it, but neither is he an absolute monarch as, say, French King Louis XIV and other continental monarchs were.

But he is an elective monarch with vast personal powers which he can exercise without question. One is the presidential power to pardon or commute. In practice this is exercised in one of two ways.

One is on advice from and under clear guidelines issued from the Department of Justice. The other is in his own discretion.

…departing President Clinton..

When this is done in favour of political allies and other people, particularly when he is about to leave office, the exercise is of course likely to be highly  controversial.

On his last day in office, 20 January 2001, President Bill Clinton signed 140 pardons – that's right, 140 pardons, as well as several commutations, that is  reductions of sentences. These included his half brother, and one Susan McDougal .

She had completed an 18 months sentence on contempt charges for refusing to testify about the President and Mrs. Clinton's alleged role in the Whitewater scandal.

President Clinton also pardoned fugitive financier Marc Rich who was charged with 51 counts of tax fraud. Critics complained that Denise Rich, his former wife, had made substantial donations to the Clinton Library and Mrs. Clinton's senate campaign.

Mrs Rich's final donation was made one  year before  Scooter Libby suggested   she approach the President for a pardon. Marc Rich was also suspected of being a middleman in several suspect Iraqi oil deals involving over 4 million barrels of oil.

Let there be no doubt. This is how a politicians' republic works.

…meanwhile in the fifth ( or as some  demand, the sixth) republic…

French President Nicholas Sarkozy attacked the use of presidential pardons before he became president and said the system should be changed.

Now in office, he has just granted a partial pardon to an influential conservative, Jean-Charles Marchiani, a former secret agent, who was close to former President Jacques Chirac.

Marchiani was convicted twice for taking big bribes for business contracts and is currently on trial in an international arms trafficking case.

He had helped free French hostages in Lebanon in the 1980s and Bosnia in the 1990s, was a politician in the  European parliament and  a prefect  in the south of France, but according to Associated Press, the decision is controversial, as the following video and montage demonstrate.

The montage is based on the 2005 French police film "Grabuge" ( Havoc) and suggests the close links between Marchiani and leading conservative politicans including former President Jacques Chirac and Charles Pasqua.


"How can we talk about justice, when the same rules are not applied to everyone?" demanded the leader of France's opposition Socialist Party, Martine Aubry.

She said that President Sarkozy had rejected appeals for a mass early release for prisoners convicted of certain minor crimes.

.…if only we were a politicans' republic…  

 The Sydney Morning Herald journalist and ABC commentator David Marr seems to thinks the fact that our Governor –General does not enjoy a similar absolute power as these politician Heads of State do republican is something which we should address in changing our constitution, presumably to some sort of politicians’ republic.

 Mr. Marr’s last foray into constitutional change was at the 2020 Summit.

According to Professor Robert Mann, who is also a passionate republican, David Marr intervened at a “chaotic” meeting of the governance panel co-chaired by MP and former ABC journalists Maxine McKew and News Limited chairman John Hartigan (this column, 12 June 2008). 

Manne said the session soon degenerated into a Mad Hatter's Party.   


Marr’s intervention was “a dramatic plea that the republic be included” in the panel’s list of recommendations to the Summit plenary session. A somewhat embarassed Marr was told this was already included. Indeed it was at the top of the list.  

But Manne says that Marr’s confusion "was understandable. In our haste, no one could be certain what had been decided. I certainly was not.”

Writing more recently in The Sydney Morning Herald,  on 27 December, 2008, Marr  pondered the fate of prominent former Federal Court judge Marcus Einfeld who has pleaded guilty to charge of perjury. He is to be sentenced on 27 February, 2009.

 Suggesting  that departing President George Bush may be about to exercise his power to pardon , Marr laments this is “something, alas, ( Governor- General) Quentin Bryce can't extend to Marcus Einfeld. “It's just one more problem we need to address in the constitution.”

Mr. Marr must believe that curing this "problem' would increase Australia – wide support for a politicians’ republic.

…credit where credit is due…

That said, I have to concede that Mr. Marr, who has condemned the republican movement as "near comatose",  is prepared to give credit where credit is due.

“ The Queen, "he wrote  in The Sydney Morning Herald’s Good Weekend, 13 December, 2008, "emerged a clear winner in a troubled year."

“’Why,’ she asked Professor Luis Garicano of the London School of Economics, ‘did nobody notice it?’

“She was referring to the cause or causes of the late difficulties of capitalism. 

“’ If these things were so large, how come everyone missed them?’

“The professor admitted ‘at every stage, someone was relying on somebody else and everyone  thought they were doing the right thing.’

“ HM paused and remarked:’ Awful.’”

Republicans now concede that The Queen is an exemplary Sovereign, and most admit Australians are unlikely to reject her. 

They conveniently forget that one of their great charges against ACM was that Her Majesty's evident virtues were  not the basis of our prinicpal argument in the 1999 referendum campaign.

We rejected this advice, advice  so graciously offered by  the republican movement, on how we should campaign.

We  centred ours on the constitution.  A glance at the voting book distributed by the Australian Electoral Commission demonstrates that ours were powerful, well researched and credible arguments . 

Apparently republicans now regret that their case set out  in the AEC book was so cursory. Printed facing one another, many of the " Vote Yes"  pages opposite our arguments were entirely blank.

Next time they can include the argument about presidential pardons, as well as not being an international  laughing stock (presumably Canada is), improving employment, artistic creativity, the foreign born editor of The Sydney Morning Herald graciously agreeing to become a citizen if we become a politicans' republic, and all those other credible and persuasive arguments.

In any event, the landslide result in 1999 confirms the Australian people agreed with us. 

…full text of President Ford's Proclamation pardoning Richard Nixon….

(click "read more")








You may also like

Celebrate the King’s Birthday

Celebrate the King’s Birthday

Record Online Audience 

Record Online Audience 
{"email":"Email address invalid","url":"Website address invalid","required":"Required field missing"}

Subscribe to our newsletter!