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|Volume 11 |Issue 47| November 30, 2012 ||
The concept of pardoning is an artefact of olden times, of an age where an omnipotent monarch possessed the power to punish or remit any punishment. It was the symbolic attribute of a God-like king having full control over his subject's life and death.
In the democratic society of ancient Athens, the institution of clemency was not fully developed, largely because the power rested with the people rather than the monarch. The procedural difficulties to obtain clemency in Athens were immense. It required that at least 6,000 citizens support a petition for clemency in a secret poll. Because the approval of so many people was difficult to obtain, clemency was seldom granted to individuals, at least those who were not celebrities. As a result, the question of giving clemency had often hinged on popularity rather than concerns that a just result be reached.
In modern times, Bangladesh's constitution says that all power of the Republic belongs to the people. But ordinary people find themselves powerless as the powers that be forget to exercise the state power on behalf of the people. The ongoing controversy over awarding Presidential clemency to some ruling party men has become a glaring example of how the ruling power is exercising their own discretion, keeping the country's people in the dark.
President Zillur Rahman in the last three years granted clemency to 21 persons sentenced to death in different cases. In doing so the honourable President set a bizarre record, as his predecessors in over the past three decades– from1972 to 2008– granted clemency to only four people. The information disclosed by Home Minister Mohiuddin Khan Alamgir on November 14 in parliament triggered a widespread hue and cry. The way the President granted clemency did not match the philosophy of the constitutional provision for Presidential mercy.
Article 49 of the Constitution provides that the President shall have the power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
The philosophy of this power, according to legal experts, is to afford relief from undue harshness or evident mistake in the judicial proceedings. The administration of justice by the courts may not always be wiser or be certainly considerate of circumstances. To provide remedy in such a case, the Presidential power to pardon is used.
But mindless exercise of the Presidential power to grant clemency has sparked allegations of misuse and abuse of the extraordinary authority, and the way the authority was exercised to benefit only the ruling party men also serves a severe blows to the rule of law.
Although the truth is that President Zillur Rahman exercised this extraordinary authority on the advice of Prime Minister Sheikh Hasina, the office of the President has been dragged into the controversy. However people's expectations were different. When Zillur, a seasoned politician, took over the presidency in February 2009, it was expected that he would work to brighten the image of the Bangabhaban. His predecessor Iajuddin Ahmed had badly failed to uphold the dignity and integrity of the office of the President, which is not only the symbol of the country's heritage but also plays an important part in the history of Bangladesh. People's expectations have been dashed.
President Zillur did not wait long to exercise the extraordinary constitutional power. He assumed presidency in February 2009 and in November of that year pardoned sentences against Shahadab Akbar, son of deputy leader of parliament Syeda Sajeda Chowdhury.
Sahadab was sentenced to 18 years' imprisonment and fined Tk1.6 crore in absentia in four cases filed by the Anti-Corruption Commission and National Board of Revenue during the tenure of the last caretaker government. The Presidential pardon drew widespread criticism. In September, 2010, he pardoned 20 death row inmates of the Jubo Dal leader Sabbir Ahmed Gama killing case. Most of them were Awami League adherents and activists.
Again in July 2011, he has granted controversial mercy to AHM Biplob, a son of ruling AL leader Abu Taher of Laxmipur and a death row inmate in the much-talked-about Nurul Islam murder case. Biplob appears to be a most fortunate man as the President granted him mercy for the second time in seven months. This time, Biplob's life sentence in each of the two murder cases has been reduced to a 10-year imprisonment.
Zillur's predecessor Iajuddin Ahmed, in 2005, had pardoned Mohiuddin Jhintu, who was President of the then ruling BNP's Sweden chapter. Jhintu was sentenced to death two decades ago in a double murder case but the other convict in the same case had been executed before Jhintu was pardoned by the then President.
The Presidential clemency at that time triggered widespread criticism. The then main opposition Awami League had launched blistering attacks in and outside the parliament. This time the ruling AL leaders and lawmakers have remained silent about the Presidential clemency.
What could have the President done to avert the controversy over the clemency? What could have the prime minister done to uphold the image of the presidency? If one goes through the constitution, she will find that like other powers, the President has to exercise this power on the advice of the prime minister. So, it largely depends on the prime minister whether s/he wants to contribute to holding the image of the presidency by avoiding such mindless use of this extraordinary Presidential power to pardon.
The President should also do something to avert such unpleasant situations regarding the use of this power. What can he do? In granting pardon, the President may use his office to scrutinise the facts and evidence before acting only on the advice of the prime minister. Like the premier, the President also has taken an oath of office to preserve, protect and defend the Constitution which is the supreme law of the land. But if the President blindly acts on the advice on the prime minister, the situation will deteriorate further and it will not brighten the image of the government and the ruling party that elected him as the President. And mindless misuse of power will put the presidency into further controversy and taint its image. People may not pardon the President and the Prime Minister for their failure to uphold the dignity of the highest office of the state.
The writer is Senior Reporter, The Daily Star.
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