Law vision
Is prerogative mercy immune from judicial review?
Md. Minhazul Islam
ON January 13, 2005, the then President granted pardon to a double murder convict, Mohiuuddin Zintu. The incumbent President has recently forgiven Shahadab Akbar who was sentenced to 18 years' imprisonment and fined Tk 1.6 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. Without surrender to the court, his sentences and fines are pardoned. In both the time the matters attracted serious public criticism and debate. Here is my purely academic endeavor to discuss the scope of prerogative mercy of the president within the constitutional ambit.
Article 49 of our Constitution confers on the President power of granting amnesty. The article runs: “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”. But this power is to be exercised in accordance with ministerial advice and not by exercise of the President's individual discretion because of article 48 (3) of the Constitution, which provides “Save only that of appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister.” So, the President cannot act independently in exercising the prerogative power of mercy.
No one so far challenged the legality or validity of the tender of pardon by the President and we are yet to have the view of our apex court on this point. There might be an interpretation of article 49 of our Constitution by the Supreme Court. As per article 48 (3) of our constitution, the prerogative power of mercy is to be exercised by the President in accordance with the advice of the Prime Minister through the ministry of law and parliamentary affairs (Rule 14 of the Rules of Business of 1996) and he cannot apply his individual discretion. It shows that there is scope of abuse or arbitrary exercise of prerogative power of mercy from political viewpoint. I would argue that the President can exercise this power independently without any advice from the Prime Minister. But does it ensure that the President will exercise this power rationally? The election procedure to Presidentship in Bangladesh would lead us to answer the question in the negative.
There is no guideline for the exercise of prerogative power of mercy
Article 49 of the Constitution that empowers the President to grant 'mercy' does not explain the situations under which the President may exercise his prerogative power. It was imperative that this power should be exercised judiciously and should be offered to one with the highest degree of remorse in addition to service to the nation or mankind. The commutation of death penalty of Col. Taher, a wounded and decorated hero of our war of national liberation, imposed by a martial law court could have been an ideal case to follow the letter and spirit of the constitutional prerogative power of mercy.
The rationale of the pardon power has been felicitously enunciated by Justice Holmes of the United States Supreme Court in the case of Biddle v. Perovich in these words [71 L. Ed. 1161 at 1163]: “A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed”. So, the test of tendering pardon is public welfare. At the time of granting pardon, the President is to examine many factors. Because, this power is given to use in extraordinary cases and where there is no other option open to the convicted person or to his family.
Prerogative Power of Mercy in India
Articles 72 and 161 of the Indian Constitution confer this power on the president and the governor, respectively. It is settled law that this power is to be exercised in accordance with ministerial advice and not by exercise of the president's or the governor's individual discretion. Though the President or Governor is required to grant pardon in accordance with the ministerial advice, but there are some grounds upon which this power can be exercised by the President or Governor. In India, judicial decisions, law books, reports of Law Commission, academic writings and statements of administrators and people in public life reveal that the following considerations have been regarded as relevant and legitimate for the exercise of the power of pardon. Some of the illustrative considerations are: a. interest of society and the convict; b. the period of imprisonment undergone and the remaining period; c. seriousness and relative recentness of the offence; d. the age of the prisoner and the reasonable expectation of his longevity; e. the health of the prisoner especially any serious illness from which he may be suffering; f. good prison record; g. post conviction conduct, character and reputation; h. remorse and atonement; i. deference to public opinion.
In Epruru Sudhakar & Another. v. Government of Andhra Pradesh & Ors. Case [Writ Petition (Crl.) 284-85 of 2005] setting aside a decision of then Andhra Pradesh Governor Sushil Kumar Shinde, remitting the sentence of a Congress activist who faced ten years in prison in connection with the killing of two persons including a TDP activist, the SC bench of Justices S H Kapadia and Arijit Pasayat expressed their view that “Politics can't be the factor in pardon.”
Judicial review of the exercise of power of pardon
In Bangladesh it is not settled whether the exercise of tender of pardon by the President is subject to judicial review or not. Presidential pardon granted to Zintu was the first appropriate case for challenging the pardon's validity.
In India, it is well settled that the exercise or non-exercise of pardon power by the President or Governor is not immune from judicial review. Indian Supreme Court in the case of Maru Ram [1981 (1) SCC 107] held that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide. , The Court ruled that considerations of religion, caste, colour or political loyalty are totally irrelevant and fraught with discrimination. Again, the Indian Supreme Court in Kehar Singh's [1989 (1) SCC 204] case has unequivocally rejected the contention of the Attorney General that the power of pardon can be exercised for political consideration. It was also submitted on behalf of the Union of India, in Kehar Singh's case, placing reliance on the doctrine of the division (separation) of powers, that it was not open to the judiciary to scrutinize the exercise of the “mercy” power. In dealing with this submission on behalf of the Union of India, the Supreme Court held that the question as to the area of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review.
Conclusion
From Indian case laws, it is clear that President's prerogative of mercy is not immune from judicial review. In determining the question of legality (if anyone challenged) of the exercise of tender of pardon by the Presidents, the court may lay down the grounds or conditions upon which President could exercise his prerogative power of mercy. Otherwise, the legislature can think of amending article 49 of our Constitution in order to prevent any possible miscarriage of justice.
The writer is Lecturer, Department of Law, BGC Trust University Bangladesh.
