The Government has grounds for confidence that its plan for a presidential pardon for "on-the-runs" is constitutionally acceptable, writes Mark Hennessy
The release of 444 paramilitary prisoners, many of whom had murdered, maimed and bombed, following the Belfast agreement in 1998 was a bitter pill for many to swallow.
Wiping the past clean for an unknown number who were never put behind bars because they were never caught is now beginning to prove to be just as controversial for Taoiseach Bertie Ahern.
Faced with questions, Mr Ahern insists that everyone knew four years ago after the Weston Park talks that so-called "on-the-runs" would have to be dealt with, and would have to be allowed to remain free.
This is only partly true, as the Taoiseach well knows, since the Weston Park deal never said that people wanted in the Republic would be granted pardons without ever actually being convicted.
In addition, paramilitary prisoners were supposed to serve two years in jail before qualifying for release, as both the Taoiseach and British prime minister Tony Blair made clear repeatedly.
Furthermore, it was supposed to apply only to those who were, literally, "on the run", and not to those living on both sides of the Border who were not prosecuted.
The latter point is crucial since it offers a "get out of jail" card to anyone facing prosecution from the Police Service of Northern Ireland's "cold case" review of murders dating back to the earliest days of the Troubles.
Finally, Mr Ahern's declaration that nothing much has changed is questionable since there was nothing agreed at Weston Park that ever said security force personnel could also qualify.
Under the Government's plan "on-the-runs" wanted in the Republic are to be granted a presidential pardon though they would not actually ever be convicted of anything.
The President does not enjoy any free will. If the Government "advises" her that X qualifies then he qualifies regardless of any opinion she might have.
The system chosen by the UK is different since a finding of guilt would be recorded, though the individual would also never suffer a moment in custody.
The Government has opted for pardons under Article 13.6 of the Constitution for one simple reason: to guarantee that the killers of Det Garda Jerry McCabe do not get out early.
After Good Friday it set up an eligibility body that then made recommendations to the Cabinet and to the Cabinet alone, which then freed nearly 50 paramilitaries.
However, the McCabe killers, now in Castlerea prison, went to court arguing that the Cabinet could not decide to free some and keep them in jail. The Supreme Court finally found against them.
By involving the President the Government can invoke Article 13.8 to ensure that Kevin Walsh, Pearse McCauley, Jeremiah Sheehy and Michael O'Neill do not get another unwelcome day in court.
Article 13.8 states: "The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office, or for any act done or purporting to be done by him in the exercise and performance of these powers and functions."
Even here, however, the issue is not simple since the Supreme Court ruled in the early 1980s that this protection does not apply to actions taken by the President under the direction of the Government, rather than in those areas where she has complete discretion.
Trying to downplay the storm, the Taoiseach has said that only a half-dozen would get pardons here, while Michael McDowell is a little more vague, talking about "a handful".
Neither answer makes much sense since neither has been able to state how many people are wanted in the State for paramilitary offences, or how many unsolved crimes can be put down to paramilitaries. On the law, though, it would appear that the Government has grounds for confidence that its plan to use Article 13.6 will not fall at a constitutional hurdle.
It 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."
The vital word in the Article, according to Trinity College associate professor Gerry Whyte, is "and", implying a distinction between a presidential pardon and a commutation of sentence by the President.
In 1991, Mr McDowell, then a practising barrister, argued that there is nothing in law to stop the Executive from issuing pardons through the President.
"If the Constitution permits the public, through the Executive, to solemnly surrender or abandon a court order of a public kind convicting someone of crime, and permits, in so doing, that the convict should thereafter be regarded in public as though he had never been convicted, what affront is there to the courts, the judiciary or to the administration of justice?"
Today, however, the State is not acting to free men who should never have been jailed, but rather to ensure that those who should have gone to jail never do. But such intent matters little in law. Since no legislation is necessary, the President, even if she was of the mind, cannot meet the Council of State on the issue unless she really desires a major row, and she has shown little sign of wanting to do that up to now.