There has been quite a bit of buck-passing in the blame game that started in respect of the apportionment of responsibility for the indiscreet act. In the process the alertness of two highest offices of the country has been questioned because there are supposedly competent officials in those places to properly advise the final authorities about the propriety and desirability of such sensitive action as the pardon of convict of a double murder case. This is clearly an instance of misplaced sympathy and without doubt reflects adversely on our administrative ethos, to say the least.

The rules and the laws
The 'Rules of Business' and the 'Secretariat Instructions' of the government have been cited in the columns of this newspaper to highlight the irregularities committed in the processing of the aforementioned clemency case and the necessity of an inquiry has been impressed to allay the fears and anger of law-abiding citizens. Repealing of the Presidential clemency has been suggested as a remedy and the attention of the jurists and constitutional experts has been sought for a healthy resolution. Be that as it may. The general public, however, should know the distinguishing facts relating to clemency, pardon or withdrawal from criminal prosecutions.

Regarding the 'Prerogative of Mercy' of the President of our Republic, article 49 of the constitution of the People's Republic of Bangladesh says: "The President shall have power to grant pardons reprieves and respites and to remit, suspend or commute any sentence passed by any Court, Tribunal or other authority."

Regarding withdrawal from criminal prosecution, section 494 of 'The Code of Criminal Procedure' says "Any public prosecutor may, with the consent of the Court, before the judgment is pronounced withdraw from prosecution of any person (either generally or in respect of any one or more of the offences for which he is tried); and upon such withdrawal,

a) if it is made before a charge has been framed, the accused shall be discharged [in respect of such offence or offences];

b) if it is made after a charge has been framed, or when under this code no charge is required, he shall be acquitted [in respect of such offence or offences].

Withdrawal from criminal prosecutions-- our experiences
The above two legal positions have been mentioned to inform that the government retains the authority to exempt accused persons from criminal prosecution at different stages of trial and also show mercy to the convicted following the conclusion of the trial. Understandably, the number of persons that have been the beneficiaries of the Presidential prerogative of mercy may be less although this writer does not have the benefit of readily available statistics in this regard. However, the number of cases that have been withdrawn at different times under various political regimes do cause concern.

Herein also this writer does not have the benefit of officially published statistics in this regard. One has to primarily depend on the newspaper reports. The main opposition political party continues to allege that 70,000 criminals have been let off by the government as a matter of political expediency while the ruling party stalwarts say that a large number of their party workers were falsely implicated in criminal cases due to political vengeance and that the authority has taken remedial action after proper examination and scrutiny.

Readers would surely appreciate the complexity and sensitivity of the matter in the background of our political and bureaucratic culture. This is more so in the light of claim by responsible quarters that the criminalisation of our politics is of unhealthy proportion rendering it extremely difficult to differentiate a purely political act from a criminal act. If one ventures into the history of our politico-social progression since 1972 down to contemporary times one would come across many incidents of criminal nature which were at times committed with political motives by persons of supposedly political identity.

In the early years of our independent existence many purely criminal acts committed during the war of liberation were treated as acts in support of liberation and enjoyed exemption from criminal prosecution. Thus in the guise of patriotic acts many crimes did not come under the clutches of enforcement and adjudication. Those were uncertain and less than stable times and one could appreciate the mitigating circumstances.

But thereafter when the initial shocks were in the process of absorption, quite a number of sensational criminal cases were withdrawn on alleged political grounds. Many deaths caused by the then special forces were not even investigated and murderous actions by politically blessed vigilante groups were not taken note of.

When the above malefactors were not pursued and punished there was very little protest. The situation turned for the worse with the tragic murder of the father of nation and four national leaders. For many years these offences were not legally and appropriately treated by the stablishment till a favourable political scene unfolded. Such realities do have substantial impact on the enforcement and adjudication temperament and culture. Between 1976 and 1979 many heinous criminal cases involving murder, abduction, grievous hurt amongst others were allegedly withdrawn as part of a deal struck with some political parties by the then establishment. The so-called cadres of these parties created havoc in the south-western and north-western part of the country. Thus quite a few desperate criminals acquired respectability as politicos whom the hapless police were unsuccessfully chasing for a long time.

Matters like this send very confusing signals to the enforcement units primarily and also significantly affect the judicial authorities. Without doubt they have demoralising effect on the conscientious officials who fail to understand the propriety of the so-called dynamics of electoral adjustment and understanding.

The indiscretion of 1982 to 90 need not be discussed as this was a period of manifest unconstitutional rule. However, withdrawal from criminal prosecutions during the period from 1991 to present times on not very cogent grounds have taken place despite the democratic credentials of the relevant political regimes. Incidentally, thanks are due to all organs of our criminal justice system for the continued procrastination in ensuring speedy and timely disposal of criminal cases. As a result, the presidential prerogative of mercy was not taken advantage of on many occasions. In other words, as few cases ended in conviction the use of mercy was few and far between.

However, cases of withdrawal from criminal prosecution on political grounds is getting quite large with the passage of each political regime. Newspaper reports indicate that the volume of such withdrawals have registered sharp increase in recent years. Whether such increases is directly corelated to the heightened criminalisation of our politics may be examined by those interested to see a cleaner polity.

Principles of withdrawal from prosecution
The functionary clothes by the criminal procedure code with the power to withdraw from the prosecution is the public prosecutor. It is for him to apply an independent mind and exercise his discretion. In doing so he acts as a limb of the judicative process and not as an extension of the Executive. Although the withdrawal from prosecution is an executive function of the Public Prosecutor it has to be remembered that under the Criminal Procedure Code the prosecution of an offender for a serious offence is primarily the responsibility of the executive. The Public Prosecutor's discretion cannot be surrendered to anyone and he should ensure that the broad ends of justice, public order and peace are served.

In respect of the above, it is for the court to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. It shall be the duty of both the public prosecutor and the court to protect the administration of justice against possible abuse or misuse by the Executive by resort to provisions of section 494. In sum, the sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factor of the administration of justice not political favours nor party pressures nor similar concerns.

Ground reality and desirability
In view of the observations in the paragraphs hereinbefore, one has to judge if our public prosecutors and the concerned courts are doing their due in so far as it relates to the withdrawal from criminals prosecution. One needs to know if the executive organ of the state is rendering desired assistance in furthering the administration of justice and more specifically whether it is making serious efforts to prosecute the major offenders. It also needs to be examined by competent authority whether in consenting to withdrawal from criminal prosecution the courts have taken sufficient precaution to prevent executive abuse and misuse and undesirable political favours from taking place.

Under section 492 of the Criminal Procedure Code "the government may appoint generally, or in any case or for any specified class of cases, in any local area, one or more officers to be called public prosecutors." Knowledgeable quarters are of the opinion that a large part of such appointments by the government are predominantly politically motivated and that party-faithfuls are mostly blessed with such appointments with merit, ability and integrity taking a back seat. Under such circumstances, the protection of interest of the administration of justice free from political pressures become a very difficult and embarrassing job. And with the separation of judiciary from the executive being not implemented as desired and directed by the apex court, the court's discomfort can be imagined in so as it relates to the sensitive aspect of consenting to the application of withdrawal from criminal prosecution by public prosecutors.

The crux of the subject is primarily rooted in our political culture. The politicians have to decide whether they need rogue and criminal elements in furthering their so-called political objective even at the expense of their public image and social acceptability. Also whether political opponents should be harassed by institution of palpably false cases and whether purely criminal elements should be allowed to masquerade as party operatives. Again it is the politicians themselves who should take the lead in the gradual decriminalisation of the political process and ensure its sanitisation. The civil society and conscientious public servants may act as facilitators. Unhealthy practices with regard to the pardon and withdrawal from prosecution will then be on the wane.

Muhammad Nurul Huda is Former Secretary and IGP