Exercise of Prerogative of mercy by the President of Bangladesh: An Interpretation with Comparative Study

Picture Courtesy: https://www.britannica.com/place/Bangladesh

This guest post was written by Mahmudul Hasan Sabuz, a student of Department of Law and Human Rights, University of Asia Pacific, Dhaka, Bangladesh.

Abstract:

The president of Bangladesh has all the right to pardon which implies an exclusive judicial power even after the final decision of the highest courtbut he has all the obligations to be just also. Its exercise to cease conviction or reduce penalty draws widespread criticism too often and this contention appears as a concern to a responsible elected government. Invariably, the ultimate observation of this prerogative as constitutional safeguard to prevent miscarriage of justice can be undermined by its irrational practice. In determining the incredibility, this prerogative of mercy of the President of Bangladesh should be rectified with the most possible constitutional and judicial approaches.

1. Introduction:

The power of ‘pardon’ has been dealt by the judiciary in different countries. The framers of the constitution of Bangladesh were well acquainted with the notion of prerogative power, having witnessed their use by British monarchs during the colonial period. . Article 49 of Bangladesh Constitution has entrusted the President with a prerogative of mercy following the paramount trend of monarch’s privileges. Justice Oliver Wendell Holmes in Biddle v. Perovich[2]said, “A pardon in our days is not a private act of grace from an individual happening to possess power. However, this “prerogative power “suffers some serious weakness i.e. lack of the direction of the exercising this discretion of the President himself. Actually the constitution gives this facility to the president to act as per his discretion on the basis of his best choice what may be done for the welfare of the society, community and country smoothly so that no one can question him for his action which he has done for the sake of country at all. While it is a prerogative and conventionally not questioned in any country court, it has made people anxious. The theoretical appearance of this prerogative is too grave to consider it lightly especially in Bangladesh where the President comes through a political nomination and a mere election by the members of the Parliament.[3] In this article I have tried to explore the background and objective of prerogative of mercy, its practice, the threatened constitutional provisions and the practicable control of this prerogative in the light of Bangladesh Constitution.

2. Historical Background of Prerogative of mercy

The Power of Pardon was historically vested in the British monarch. At common law, a pardon was an act of mercy whereby the king forgave any crime, offence, punishment, execution, right, title, debt, or duty. This power was absolute, unfettered and not subject to any judicial scrutiny. Hillarie Barnett approached “The King’s claim to dispense justice in his own right and without the judges was dispelled in 1607”.[4] Prior to the Glorious Revolution, 1688 in UK, all powers were found exercised by the Monarch with his discretions. It was the seventeenth century when throughout several cases, the courts of England contemplated about the risks of the measures dealt with the prerogatives of the Crown.[5] The judges then began to crave that the power had been vested upon the Crown for doing goods of the subjects only and remarked that it should not go unquestioned. Even it was declared rigidly “The King hath no prerogative, but that which the law of the land allows him.”[6] Those very facts led the changes of the traditional thoughts around the King’s powers. The concept of the rights of the men and the freedom of the organs of the Government over the King’s authority extended and the comments of Henry Bracton was admitted as “the King Should not be over man, but under God and the Law.”[7] From this source, it came to find a place in the Constitutions of India. From 1935 onwards, the law of pardon was contained in Section 295[8] of the Government of India Act, 1935which did not limit the power of the Sovereign. There was no provisioning the Government of India Act, 1935 corresponding to Article 161 of the Constitution.[9] In the Constitution of India, the power of Presidential Pardon is found in Article 72.[10] Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.[11]

3. Prerogative of mercy in United States of America

The American President is constitutionally empowered by Article II of the US Constitution grants the President the “Power to Grant Reprieves and Pardons for offenses against the United States, except in cases of Impeachment.”[12] American Supreme Court also endorsed this power in United States v Wilson[13] by referring identical power of the British monarchs. The merits of this clemency by the President were characterized in Biddle v Perovich[14]in a way that “A pardon is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. The practice of President’s pardon does not occur by himself. Irrespective of its status or name, this power alone with responsibility is delegated to the Department of Justice i.e. United States Federal Executive Department empowered to enforce law and administer justice at a large extent. Actually, that department regulates each case and mentions the President about the sanction.[15] American Supreme Court by the statement of Chief Justice Taft in Ex parte Grossman as “[O]ur Constitution confers this discretion on the highest officer in nation in confidence that he will not abuse it.”[16] The pardoning by the American Presidents to the offenders could not maintain always the holy stream. Those were used to favor the politically obedient people[17] considerably besides the actual deserving cases. In spite of the utility of the Presidential clemency, Americans witnessed of its disadvantageous effects.

4. Prerogative of mercy in United Kingdom

The exercise of Prerogative of mercy by the Crown in United Kingdom, became established in the middle ages, with the infringement of King’s peace emerging as a basis for criminal liability. Lord Denning MR pronounced in Laker Airways v Department of Trade (1977) that “the prerogative is a discretionary power to be exercised for the public good, it follows that its existence can be examined by the courts just as any other discretionary power which is vested in the executive.” As early as 1673, in Thomas v. Sorrel[18]the maxim non potestrexgratiamfacere cum injuria et damnoaliorum, that is to say ‘the king cannot confer a favor on one man to the injury and damage of others’, was applied. More so, where any right or benefit is vested in a subject by statute or otherwise, the Crown, by a pardon, cannot affect it or take it away.[19] In De Freitas v Benny (1976), Lord Diplock said that “At common law, this has always been a matter which lies solely in the discretion of the sovereign, who by constitutional convention exercises it in respect of England on the advice of the Home Secretary to whom Her Majesty delegates her discretion.” So, the Crown in UK does not exercise this power with any personal involvement rather acts in accordance to the Home Secretary of the state who is accountable before the Parliament.

5. Prerogative of mercy in India:

In India, Article 72 of the Constitution of India empowers the President of India to grant pardon reprieve, respite or remission of punishment, or to suspend, remit or commute the sentence of any person convicted of any offence and for the Governors by article 161. However, the President cannot act as per his own whims and fancies and in this process he is to be guided by the Home Minister and the council of ministers. Indian Constitution has become advanced and obvious by keeping provisions to form Council of Ministers to aid and advise President.[20] The exercise of judicial review is constitutionally permitted there.[21] The preeminence of this power was ascertained as subject to judicial scrutiny in MaruRamu v Union of India[22] and Kehar Singh v Union of India[23]. In Maru Ram v. Union of India[24], the court observed, ‘Pardon, using this expression in the amplest connotation, ordains fair exercise, as we have indicated above. It has been reposed by the people through the Constitution in the head of the state and enjoys high status. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context.” The court also justifies the existence of a “Pardon”, by acknowledging the fallibility of human judgment being undeniable even in a supremely legally trained mind and therefore any such errors can be remedied by entrusting power to a higher authority, which shall “scrutinize the validly of the threatened denial of life or the continued denial of personal liberty.”

6. Prerogative of mercy in Bangladesh

Article 49 of the Constitution of Bangladesh confers mercy power on the President. Apart from constitutional provisions, the government may suspend, remit or commute the sentence of a person under the Code of Criminal Procedure of 1898.[25] According to the Constitution,[26] the President is to exercise the prerogative power of mercy in consultation with or in accordance with the advice of the Prime Minister through the Ministry of Law and Parliamentary Affairs.[27] Now it is clear that the President is to act according to the wish of the government and he cannot apply his individual discretion. The President cannot act independently in exercising the prerogative power of mercy. The object of conferring this judicial power on the president is to correct possible judicial errors as no human system of judicial administration can be free from perfections.

7. Misuse of Mercy Power in Bangladesh: Some Recent Issues

Former jubo league leader Aslam Fakir was sentenced death for killing Manikanda UP chairman AKM Saheb Ali on September 24, 2003.On November 2012 hoe got release under prerogative mercy of the president. Again in 2015 he arrested in connection with another murder case.

The culture of pardoning initially started in different way as by promulgating the Indemnity Ordinance 1976 by President Khondaker Mostaq Ahmed which was also ratified by the next Parliament in 1979 and that draconian law prohibited any investigation and prosecution of the murder of Sheikh Mujib, the national leader and 14 members of his family.

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 objectives even at the expense of their public image and social acceptability. Legally speaking, therefore, the matter is quite clear and explicit. What, however, may not be adequately and satisfactorily clear is whether, without the suspected lack of application of judicious scrutiny, such legal actions are socially and politically desirable in a healthy democratic polity. Upon a point of elucidation and clarification a citizen could wish to know whether public interest has necessitated the exercise of such extraordinary constitutional power.

In Bangladesh, it is not settled, whether the exercise of prerogative power by the President is subject to judicial review or not. Recently a Division Bench of High Court Division held that in exercising the power of mercy the President misused it.[28]Citing examples of various cases, the Bench said the court had the jurisdiction to examine whether the President had misused his constitutional power.

8. Effect of prerogative of mercy without rational consideration

 

 (a)The constitutional supremacy and democratic perception: In Bangladesh Constitution             from the preamble to the end the constitutionalists kept the theme of democracy in every segment of their work. the President of a state must not be politically biased if democracy signifies the government for the people. While an elected government moves prejudicially to save the obliged people by rendering mercy, it will be terminated into political autocracy. Rationally, it is “Being for and about people’s welfare, democratic sovereignty generally downplays revolution and violence as a primary means to quash despotic policies, structures and behaviors.”[29] The second and third paragraph of the preamble of Bangladesh Constitution emphasizes on ‘democracy’ as the fundamental principle of the state policy and ‘democratic process’ as a means to realize the aims of the state respectively. Article 7 states that the people of the republic keep all the powers.[30] As a part of the constitution, this provision should prevail upon any authority. So, all authorities have been originated from the citizens who have conferred the authorities on the different organs of the state commonly known as the government.[31]

(b)Rule of Law: Unfair prerogative of mercy by the President hampering the standards of rule of law.  Bangladesh constitution accommodates rule of law by inserting government to run in accordance with law[32], equality for all citizens[33], treatment according to law[34], ensuring independence of judiciary[35], access to justice[36], protection against arbitrary exercise of discretionary power[37] and so on. Bangladesh vows the execution of ‘due process of law’ as a state of typical democracy and social equality. Uncontrolled and unaccountable prerogative mercy let to infer ‘the rule of man’ instead of ‘the rule of law’.

(c)Independence of judiciary: The criminals will be provoked by the precedence of the arbitrary exercise of pardoning and will think that not the judiciary rather the President is the last shelter of them. In such way, the administration of justice of the state will be collapsed down losing its institutional independence. The President should act as a man of prudence and always keep in mind that his power for recovering justice, not to create any issue of injustice.

9. Judicial Review of Prerogative Mercy by President

It is the mercy and decision of the highest authority of the state so the duress fraud or coercion must be proved actually. Political consideration may be an instance of the arbitrariness in pardoning. In Maru Ram Vs India,^[38]Justice Krishna Iyer said that if the Chief Minister releasing everyone in the prison in his state on his birth day and it will be an outrage on the Constitution to let such madness survive. On the other hand if the brutal murderer has been convicted having strong observations of the court about the convict’s bestiality, it will be arrogant and irrelevant abuse of the power to grant in remitting his entire life sentence merely because he has joined the party in power on the very next day after the conviction or in close relation of a high up. The court in the same case recommended for framing of rules as guideline in the exercise of this power and observed:

“Consideration for exercise of power under article 72/161 may be myriad and their occasions protean and are left to the appropriate Government, but also consideration nor occasion can be wholly irrelevant, irrational, and discriminatory or malafide .Only in these rare cases will the court examines the exercise”.^[39]

In the recent judgment of EpuruSudhakar and Anr.v Government of Andhra Pradesh and Ors.The Court held that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:

(1) that the order has been passed without application of mind;

(2) that the order is mala fide;

(3) that the order has been passed on extraneous or wholly irrelevant considerations;

(4) that relevant materials have been kept out of consideration;

(5) that the order suffers from arbitrariness

Thus, in these judgments concerning the Governor’s exercise of pardon, the Court seems to have widened the grounds for judicial review by enumerating specific grounds on which the grant of pardon can be considered arbitrary.

10. Conclusion:

I stand with the existence of prerogative of mercy in Bangladesh. It could delight people, if it would have been exercised for a rational and sustainable issue. if such discretionary power of the President is discriminatory, arbitrary or gross violation of the equality, justice and good conscience it can be challenged as limitations in exercising the prerogative power of President are prescribed in Maru Ram[40]case and mere political or personal interest cannot undermine such prerogative power. In Bangladesh, keeping the examples of Indian Courts in mind, prerogative power of the President should be subject to some measures of control.

References:

Journal Papers:

[1] MooreD.K. (1993) ‘Pardon for Good and Sufficient Reasons’, University of Richmond Law Review, Vol.27, pp 281-282

[2] Islam Md. Minhazul ,Judicially Reviewing the President’s Prerogative of Mercy : A Comparative Study, Bangladesh Research Publications Journal, Volume 7(2012)

Books:

[1] Islam Mahmudul,Constitutional Law of Bangladesh,MullickBothers,Second Edition reprint 2006.

[2] The Constitution of the People’s Republic of Bangladesh.

[3] Barnett, H. (2003), Constitutional and Administrative Law, 4^th edition, Cavendish Publishing Ltd, London. P.139

[4] Parpworth, N. (2006), Constitutional and Administrative Law, 4^th edition, Oxford University Press, New York, p.50

[5] Margaret Davies, (2002) Asking the Law Question: the Dissolution of Legal Theory, 2nd edition, Lawbook Co, Sydney, p. 278

[6] Arbitrary or capricious exercise of discretion (Presiding Officer v Sadaruddin, 19 DLR (SC) 516) and non-application of mind (Lutfu Mia v Bangladesh (1981) BLD (AD) 105)

[7] Kapoor, A.C. and Mishra, K.K. (2002) Select Constitution, 15^th edition, S Chand and Company Ltd., New Delhi, p. 255

[8] Bakshi, P.M. (2007), The Constitution of India, Eighth edition, Universal Law Publishing Company, New Delhi, p.100

[9] The Code of Criminal Procedure, 1898

[10] W.S. Matthew (2007) Democratic Sovereignty: Authority, legitimacy, and state in a globalizing age, 1^st edition, UCL Press, Oxon, UK, p. 19

[11] The Constitution of India

[12] The Constitution of Pakistan

[13] The Constitution of USA

[14] The Proclamations Cast (1610) 12  Co Rep 74,76

Daily News Papers:

[1] ShakhawatLiton ‘Controversies can be costly’. The Daily Star, February 28, 2012

[2] The Daily Star, February 27, 2012

[3] M. Abdul LatifMondal ‘Presidential prerogative to grant clemency’. The Daily Star, September 24, 2010

[4] The Daily Star, April 26, 2012

Case:

[1] 32 U.S. (7 Pet.) 150 (1833)

[2] 274 U.S. 480 (1927)

[3] 267 U.S. 121 (1925)

[4]Attorney General v Fulham Corporation[1921] 90 LJ Ch 281

[5] 1981 (1) SCC 107

[6]Sarwar Kamal vs. State, 64 DLR (2012) 331

[7] AIR 1989 SC 653

[8] Shoib v Government of Bangladesh (37 DLR 318)

[9] 1981(1) SCC 107

[10] Maru Ram Vs Union of India 1981(1)SCC 107

[11] Para 30, Knight v Indian Head School Division No. 19 [1990] 1 S.C.R. 653 SC (Canada)

Website:

[1] 274 U.S 480 (1927). Available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US &vol=274&invol=480 (visited on July 14, 2014)

[2] 378 F. Supp. 1221 (D.D.C. 1974). Available in Judicially Reviewing the President’s Prerogative of Mercy: A Comparative Study, at http://www.bdresearch.org/home/attachments/article/nArt/292.pdf (visited on 14-04-2014)

[3] 236 U.S. 79 (1915). Available at http://phbar.org/forum/viewtopic.php?f=65

&t=1623&start=0&view=print (visited on 28-05-2014)

[4] (1673) Vaugh 330 at 343. Available at http://en.wikipedia.org/wiki/Thomas_v_Sorrell (visited on 29-05-2014)

[5] Biggins case (1599) 5 Co Rep 50 a,b. Available at http://www. legalserviceindia.com/article/l370-Presidential-Pardon.html (visited on 24- 05-2014)

[6] 1993 (4) All ER 442. Available at https://bookshop.blackwell.co.uk/extracts/ 9780 1992 17762_ leyland.pdf (visited on 09-05-2014)

[7] Lewis in his book, Judicial Remedies in Public Law(1992) p 21, states: “In principle a failure to consider exercising the power to grant a pardon should be reviewable, at least if an individual can demonstrate that there is some reason why the Home Secretary should consider the case. It is also difficult to see why a decision to refuse a pardon should not also be reviewable in appropriate circumstances, for example, where the allegation is that there has been a failure to act in accordance with any relevant material or a failure to act in accordance with any relevant guidelines, or if there is an error of law as to the element of the offence for which the pardon was sought”. Available at http://www.legalserviceindia.com/article/ l370-Presidential-Pardon.html (visited on 30-04-2014)

[8] http://indiankanoon.org/doc/1222748/ (visited on 05-07-2014)

[9] http://www.thedailystar.net/law/2005/08/01/, Last accessed on 12 June 2012

[10] Available at http://orissa.gov.in/e-magazine/Orissareview/2012/oct/engpdf/ 58-63.pdf (visited on 24-04-2014)

[11] Available at http://www.legalserviceindia.com/article/l149-Presidential- Pardon.html (visited on 16-06-2014)

[12] Article 45. President’s power to grant pardon, etc.- The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. Available at http://www.pakistani.org/ pakistan/constitution/part3.ch1.html (visited on 26-05-2014)

[13] Section 401 & 402 of the Code of Criminal Procedure, 1898. Available at http://bdlaws.minlaw .gov.bd / pdf _part.php?id=75 (14-07-2014) 

Footnotes

[2]274 U.S 480 (1927). Available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US &vol=274&invol=480 (visited on July 14, 2014)

[3] Article 48(1) of Bangladesh Constitution

[4]Barnett, H. (2003), Constitutional and Administrative Law, 4^th edition, Cavendish Publishing Ltd, London. P.139

[5]Parpworth, N. (2006), Constitutional and Administrative Law, 4^th edition, Oxford University Press, New York, p.50

[6] The Proclamations Cast (1610) 12  Co Rep 74,76

[7]De Legibus et Consuetudinibus Angliae (“On the Laws and Customs of England”)

[8] Section 295, the Government of India Act 1935 reads as: (1) Where any person has been sentenced to death in a Province, the Governor-General in his discretion shall have all such powers of suspension, remission of commutation of sentence as were vested in the Governor-General in Council immediately before the commencement of Part III of this Act, but save as aforesaid no authority in India outside a Province shall have any power to suspend, remit or commute the sentence of any person convicted in the Province. Provided that nothing in this sub-section affects any powers of any officer of His Majestry’s forces to suspend, remit or commute a sentence passed by a court-martial. (2) Nothing in this Act shall derogate from the right of His Majesty, or of the Governor-General, if any such right is delegated to him by His Majesty, to grant pardons, reprieves, respites or remissions of punishment.

[9] The above constitutional provisions were debated in the Constituent Assembly on 29th December 1948 and 17th September 1949. (See Constituent Assembly Debates, Vol.7, pages 1118-1120 and Vol. 10, page 389.) The grounds and principles on which these powers should be

exercised were neither discussed nor debated. (See Framing of India’s Constitution : A Study, 2nd Edition, Dr. Subhash C Kashyap, page 367-371, page 397-399.)

[10]Article 72. Power of President to grant pardons, etc. and to suspend, remit or commute sentences in certain cases – (1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence – (a) In all cases where the punishment or sentence is by a Court Martial; (b) In all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends; (c) In all cases where the sentence is a sentence of death. (2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit  or commute a sentence passed by a Court martial. (3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.

[11] These terms mean: Pardon: Complete pardon; Reprieve: Temporary suspension of sentence; Respite: awarding less sentence; Remission: Reducing amount of sentence; Commutation: Changing one punishment to another.

[12] Article II, Section 2, Clause 1

[13] 32 U.S. (7 Pet.) 150 (1833)

[14] 274 U.S. 480 (1927)

[15]Kapoor, A.C. and Mishra, K.K. (2002) Select Constitution, 15^th edition, S Chand and Company Ltd., New Delhi, p. 255

[16] 267 U.S. 121 (1925)

[17] President George HW Bush pardoned to the six officials of the previous Reagan’s administration in 1992, clemency by Clinton to sixteen Hispanic offenders of Puerto Rican group FLAN in 1999, George W Bush in 2007 controversially commuted the sentence of I Lewis Libby who was connected with Valerie Wilson scandal.

[18](1673) Vaugh 330 at 343. Available at http://en.wikipedia.org/wiki/Thomas_v_Sorrell (visited on 29-05-2014)

[19]Biggins case (1599) 5 Co Rep 50 a,b. Available at http://www. legalserviceindia.com/article/l370-Presidential-Pardon.html (visited on 24- 05-2014)

[20] Article 74 of Indian Constitution

[21] Article 72(b) of Indian Constitution

[22][1981 (1) SCC 107

[23] AIR 1989 SC 653

[24]1981(1) SCC 107.

[25]Section 401 & 402 of the Code of Criminal Procedure, 1898.Available at http://bdlaws.minlaw .gov.bd / pdf _part.php?id=75 (14-07-2014)

[26] Article 48 (3) In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister: Provided that the question whether any, and if so what, advice has been tendered by the Prime Minister to the President shall not be enquired into in any court.

[27] 31 Rule 14 of the Rules of Business of 1996 provides that the Ministry of Law, Justice and Parliamentary Affairs shall be consulted before tendering advice on a mercy petition against an order of death sentence and pardon, reprieve, respite, remission, suspension or commutation of any sentence.

[28]Sarwar Kamal vs. State, 64 DLR (2012) 331

[29] W.S. Matthew (2007) Democratic Sovereignty: Authority, legitimacy, and state in a globalizing age, 1^st edition, UCL Press, Oxon, UK, p. 19

[30] “All powers in the republic belong to the people, and their exercise on behalf of the people shall be affected only under, and by the authority of, this constitution.”

[31]Shoib v Government of Bangladesh (37 DLR 318)

[32] Article 7

[33] Article 27 “All are equal before law and all are entitled to the equal protection of law.”

[34] Article 31

[35] Articles 94, 96 and 147

[36] Articles 44 and 102

[37] Arbitrary or capricious exercise of discretion (Presiding Officer v Sadaruddin, 19 DLR (SC) 516) and non-application of mind (Lutfu Mia v Bangladesh (1981) BLD (AD) 105)

[38]Maru Ram Vs Union of India 1981(1)SCC 107

[39] Ibid.

[40] Ibid.