When pardoning is illogical and illegal

When pardoning is illogical and illegal

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There are questions among the people about granting pardon to a convicted criminal. Even doubts arise about the existence of rule of law if the government pardons powerful criminals. Such incidents did occur in Bangladesh. A killer who chopped the body Lakshmipur lawyer Nurul Islam into pieces and threw it into the river also got presidential pardon in Bangladesh. But this is not the objective of the rules regarding presidential clemency. Many countries around the globe have kept this provision either for humanitarian reasons or to for people who are victims of mistakes in a trial.

The Royal Prerogative of Mercy, which was chiefly used to commute death sentences to imprisonment, is the source of this law in the Commonwealth countries. Nowadays Britain uses this law if there is a very strong reason or universal demand. For example, in 2020, convicted murderer Steven Gallant got the chance to get released on parole from jail 10 months early. Gallant confronted a terrorist who started stabbing people at a prisoners’ rehabilitation. The act was seen as evidence that Gallant is a changed person. That’s why, his parole was acclaimed. No one looked for politics in it.

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Article 72 of the Constitution of India gives a hint of why this prerogative is there. It says 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. In the provinces of India, the governors can use this prerogative. But they cannot pardon any convicted sentenced to death or commute his death sentence.

I am not informed of whether any fugitive person in India was granted pardon. But such a presidential clemency in Bangladesh was questioned by the court

Whereas in Bangladesh this power is applied with the counsel of the prime minister, in India it is done with the counsel of the cabinet. In comparison to the article 72 of Indian constitution, section 49 of the constitution of Bangladesh rather scantier. Besides, the section 49, according to the section 401 of the CrPC (Code of Criminal Procedure) a criminal could be granted pardon. Despite the involvement of two ministries (home and law affairs) in the process to apply the prerogative, the main power is endowed with the prime minister. According to the CrPC, there is a provision to take counsel of the trial court before pardoning. Though this is not obligatory, use of this provision is helpful for ensuring justice.

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Whatever obscurity there may be in the laws of Bangladesh and India in this regard, court judgments have time and again said that the prerogative to pardon is not a principle to be applied arbitrarily.

In the verdict of Maru Ram v Union of India, the Supreme Court said the prerogative to pardon should not be exercised arbitrarily or mala fide. In the verdict of Tata Cellular v Union of India, the court said “the clemency power of the President is plenary … the Court should not interfere with such order generally on merits, but may examine that the President considers all relevant material before coming to his decision. The Court may interfere only if the order is found to have been taken without application of mind to the relevant factors or is founded on the extraneous or irrelevant considerations or is vitiated due to mala fides or patent arbitrariness.”

The court, despite the presidential clemency, ordered Sarwar Kamal to surrender before the trial court and said he could apply for clemency following the observations of the court, if so wants. The court also directed the government to prepare a protocol or amend the CrPC as there is no guideline on presidential clemency under Section 401

In 2006, a remission order by the governor of India’s state of Andhra Pradesh to a convicted Congress member was cancelled in the Epuru Sudhakar case. It was said that factual scenario has not been placed before the governor in the proper perspective and the governor did not apply his mind. In the application the Congress member said he was convicted out of political vengeance. Saying that such excuse is unacceptable and extraneous, the court gave its verdict that the clemency power of the president could not be anything outside of legal reasonableness.

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I do not know whether any fugitive person in India was granted pardon. But such a presidential clemency in Bangladesh was questioned by the court. In the verdict of Sarwar Kamal v the State in 2012, the Supreme Court said the presidential clemency granted on 12 April 1993 to fugitive Sarwar Kamal was beyond the jurisdiction (Criminal revision case 801 that was filed in 1997). Justice M Enayetur Rahim and Justice SM Zakir Hossain mentioned verdicts of at least six cases that said no fugitive can be given legal benefits.

The verdict said at least six documents needed to be submitted in case of seeking presidential clemency. These were — the case statement and police report, depositions, verdict by the trial court and Appellate Division’s verdict (if any), information whether the accused was in bail, in jail, or fugitive during the trial, how many days the convicted served in jail, the time of imprisonment and whether the convicted is accused or convicted in any other case. Without considering all these, remission only based on the application will not be as per Section 49 of the Constitution or Section 401 of the CrPC, rather it will be biased and faulty.

The court observed that if all those notes and documents were submitted to the president and the government, then they would have taken a different decision. Because it is assumed that the president and the concerned departments of the government know this law very well as to granting clemency to a fugitive under Section 49 of the constitution or Section 401 of the CrPC is obviously extraneous, mala fide, illogical and inappropriate and such use of power is against the rule of law and is misuse of power.

The court, despite the presidential clemency, ordered Sarwar Kamal to surrender before the trial court and said he could apply for clemency following the observations of the court, if so wants. The court also directed the government to prepare a protocol or amend the CrPC as there is no guideline on presidential clemency under Section 401. The government was asked to finish the task quickly to avoid any dispute, criticism and misuse of power. In its annual report, the National Human Rights Commission also said so in 2016.

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The culture of granting clemency to party cadres saying them as victims of political vengeance was started by the BNP. It has turned into a dominant feature during the incumbent government. Media reports say recently Army chief’s two brothers, Haris and Anis, were granted clemency ignoring High Court’s directives.

The trial and appeal courts could address the false cases filed on the grounds of political conspiracy. There are opportunities of withdrawing the case if the accused’s party is in power. But gaining presidential clemency based on just an application without submitting any notes and documents could no way be justice.

Granting clemency to fugitives is a more dangerous aberration of the use of law. A number of verdicts by the High Court clearly decided that a fugitive could get no advantages of law. As per the Section 112 of the constitution, the government is bound to help the Supreme Court in implementing those verdicts. Instead of doing this, granting clemency to them will be regarded as utter disregard to law and the Supreme Court.

That’s why, in the Sarwar Kamal case, the court said granting clemency to the fugitive ignoring the court order will bring such a day when the criminal justice system will surely break down.

The question is, are we very far from that situation?

* Asif Nazrul is a professor of law department at Dhaka University. The article, originally published in the print edition of Prothom Alo, has been rewritten in English by Shameem Reza

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