The Government's plans to have President Mary McAleese pardon paramilitary on-the-runs is constitutional, former taoiseach Dr Garret FitzGerald said.
Disagreeing with Fine Gael's objections to the controversial plan, Dr Fitzgerald told The Irish Times: "I think [ Fine Gael] are wrong on this one." The former taoiseach is a member of the Council of State, which can be called on by President McAleese for advice on difficult issues.
However, Taoiseach Bertie Ahern, speaking in the Dáil yesterday, has hinted that the Government may alter its proposals "if valid reasons" are put forward.
The Department of Justice, Equality and Law Reform may consider imposing a time limit on the pardon scheme, which is now open-ended.
Under the current plan, ex-paramilitaries could claim a pardon at any point in the future if they came under suspicion for crimes committed up to April 1998.
"The fact that there isn't [ an end date] doesn't mean that there won't be one. No final decision has been taken," said a department spokeswoman.
"It is an ex-gratia scheme. We can put in a date whenever we want. The eligibility body [ which will make recommendations to the Government] is not going to remain in office indefinitely."
Mr Ahern yesterday defended the plan, which will see paramilitaries enjoying a lifetime guarantee of freedom from prosecution. "It does not turn back the clock of time and treat what occurred as if it never took place. It does not undo the wrong.
"The power of pardon is separate and distinct from the power to commute or remit the punishment. Moreover, the power of pardon is not an administration of justice but an act by the President acting on the advice of the Government," he told Fine Gael leader Enda Kenny.
Article 13.6 of the Constitution states: "The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities."
Mr Ahern rejected Mr Kenny's charge that the on-the-runs legislation was agreed during "secret talks" with Sinn Féin.
Mr Kenny said: "I would have expected that the Government, rather than dragging the presidency down a route of dubious constitutionality, would have made arrangements for the persons in question to attend before a court to proclaim their guilt before being released on licence which could be revoked if, under unfortunate circumstances, matters were to reverse. A presidential pardon is irreversible and irrevocable."
The 45 paramilitary prisoners released by the Government in the wake of the Belfast Agreement were all released under licence, and can be sent back to jail with no need for a further trial if suspected of illegal activity. The Taoiseach said other countries, such as the US, "frequently" used presidential pardons. Acknowledging that on-the-runs must be dealt with, Labour leader Pat Rabbitte said people should be required to come forward, admit their guilt and then be released.
British soldiers and ex-RUC officers guilty of "dozens and dozens of murders" will now get off "scot-free" because they will also be able to qualify because of a "secret deal" between Sinn Féin and the British government.
However, Mr Ahern defended Sinn Féin: "Whatever else I accuse Sinn Féin of, and I have accused them of many things, I do not think that they were in a side-deal trying to arrange amnesties for British soldiers."
Last night, The Irish Times was reliably told that the Government only learned of the British plan to grant an amnesty to soldiers and police the day before the legislation was put before the House of Commons.
In the Dáil, the Taoiseach refused to defend the British decision: "The British decided that they had to do those things and they are doing so, but I will not sign up to matters on which I had no discussions."
