Cape Town — The presidential prerogative to grant pardons to criminals should not be unfettered but should be exercised according to a set of criteria embodied in legislation, the Democratic Alliance (DA) said yesterday.

Presidential pardons have become a hot issue as speculation mounts that President Jacob Zuma is considering pardons for apartheid killer Eugene de Kock and fraudster Schabir Shaik. The controversy relates not only to Zuma's personal involvement as the alleged beneficiary of a bribe by Shaik, but also to the credibility of the post-apartheid truth and reconciliation process.

In a bid to counter the possible arbitrary, subjective and politically expedient abuse of this power, the DA has formulated a private member's bill outlining the framework in which presidential pardons would have to be granted. But University of Western Cape constitutional law expert Prof Pierre de Vos said there was no constitutional foundation for such a "hare-brained" scheme.

"I don't think an ordinary law can limit the exercise of discretion given to the executive by the constitution, which is a higher law," he said.

DA correctional services spokesman James Selfe based his proposal on the precept that Parliament had the right and duty to regulate the exercise of presidential powers, which should not be absolute but subject to review. This was especially so as presidential pardons eroded the principle of the rule of law and equality before the law.

Selfe said the Department of Justice and Constitutional Affairs' existing informal guidelines for presidential decision-making on pardons should be made legally enforceable.

"The constitution does provide the president the power to pardon and reprieve offenders. However, criteria for considering pardons are not codified in law, and the danger of this is that a pardon could be abused in order to pardon political allies, or act in ways contrary to the interests of the public," Selfe said.

In terms of the proposals, the president would be required to seek advice on pardon applications from the justice department, which would be obliged to apply certain criteria. The president would have to take into account the report of the justice minister and to publicly disclose evidence that a successful applicant conformed with the requirements.