Legality of the presidential amnesty to a convict in a double murder case
Sheikh Hafizur Rahman Karzon
As the head of the state President has been given some prerogative powers, with the aid of which he can pardon any citizen convicted by any court or tribunal. How far this prerogative power is justifiable? Can he pardon any individual who was convicted by a court for a charge of double murder? Can he claim constitutional coverage for doing so which he has done on 'political consideration'? All these questions have been in the discussion after the present President's clemency to an expatriated BNP leader came to light.
Mohiuddin Ahmed Jhintu, founder President of BNP Sweden chapter, was accused with others of murdering two businessmen in Demra area. Police filed a case against Jhintu and his accomplices. A Martial Law Court tried the case in 1982 and convicted Jhintu (in absentia) and other two. They were awarded capital sentence. Two convicted prisoners were executed, but Jhintu escaped the sentence because he at that time absconded in abroad.
According to reports published in the newspapers, Jhintu met Prime Minister Khaleda Zia during some time in the last year. He convinced Prime Minister that he was incriminated in the double murder case on political consideration and sought justice. Prime Minister assured him to ensure justice. According to the press reports, Jhintu maintained close liaison with the incumbents of Home Ministry and Law Ministry and managed to have them channeled the process for presidential clemency. After having the process ready he came to Bangladesh on January 3 and surrendered before the Court of the Chief Metropolitan Magistrate of Dhaka. He got presidential amnesty on January 13, ten days after his coming back to Bangladesh.
The Parliamentary Standing Committee on Law, Justice and Parliamentary affairs held a meeting on July 21. The issue of the presidential amnesty to Jhintu was raised in the meeting. The Committee slated the role of Law Ministry as it did not give detailed information and proper advice to the Home Ministry. Barrister Moudud Ahmed, Minister for Law, Justice and Parliamentary affairs, denied the accusations of the Committee. He told that Home Ministry prepared the summary of the case, then it was sent to the President through the office of the Prime Minister. Later on the involvement of the Law Minister was revealed.
Presidential power to pardon
In all the states, whether it has presidential or parliamentary form of government, the head of the state is given some prerogative powers including the power to pardon. The Queen of United Kingdom can grant pardon and reprieves on the advice of the Prime Minister. The US constitution empowers the President to grant reprieves and pardons for offences against the United States, except in cases of impeachment. The President of China issues orders of special pardons. The President of France has power to pardon under the constitution of France. The President of Pakistan has similar power under the constitution. He has power to grant pardon, reprieve, and respite, and to remit, suspend, or commute any sentence passed by any court, tribunal, or other authority. The constitution of India empowers the President to grant pardons and reprieves, and suspend, remit, or commute sentences of the persons convicted by court martial, and in all cases in which sentences to death have been passed. In exercising this power the President acts in accordance with advice of the council of ministers headed by the Prime Minister.
Legality of the presidential amnesty
Like constitutions of all the democratic countries Bangladesh Constitution contains similar provision regarding the Presidential power to grant pardon. Article 49 of Bangladesh Constitution provides that the President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court or other authority. The government has also been empowered by the Criminal Procedure Code to grant pardon or commute sentences. Section 401 (1) of the Code of Criminal Procedure provides that when any person has been sentenced to punishment for an offence, the government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. According to section 402 of the Code of Criminal Procedure the government may, without the consent of the person sentenced, commute death sentence, transportation, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, and fine. Section 402A of the same Code provides that the powers conferred by sections 401 and 402 upon the government may, in the case of sentences of death, also be exercised by the President.
The power of amnesty given to the President by the Constitution and the Code of Criminal Procedure is a judicial power. In spite of the finality of judicial pronouncement, mistake is not uncommon to a judge, even if s/he is the most trained one. This reality mandates the necessity of further scrutiny in case of deprivation of life and liberty. Usually the head of state is given the power to scrutinise the correctness of a judicial pronouncement and grant pardon in case of mistake. It is, therefore, a power to correct the possible judicial error. The imperfections of judiciary are mitigated through this mechanism.
The President is expected to exercise the power of amnesty to ensure greater justice. If the judiciary has mistakenly sentenced any person, that is corrected by the President with the help of the provisions of the Constitution and the Code of Criminal Procedure. As fountain of justice the Head of the state has given prerogative power to minimise the miscarriage of justice.
The President cannot exercise his power arbitrarily. If he exercises his power to outweigh the miscarriage of justice, that will be appreciated. The President has been given the power to ensure justice according to sound rationale. But the President of Bangladesh has granted pardon to a person convicted in a double murder case, in which case two other were executed long before. The main consideration behind this pardon is political. This mala fide consideration cannot justify the pardon of the President. And the process through which Jhintu was granted pardon that was not fair. He met Prime Minister and 'managed' the incumbents of the Home and Law Ministry. After being assured he came back to Bangladesh and got presidential clemency within 10 days of his return.
The question is whether a court can examine the exercise of amnesty under Article 49. The Preamble and Article 7 of the Constitution mandates that the Republic will be a socialist society where rule of law will be secured for all citizens. These constitutional provisions give a court authority to examine the nature, extent, and scope of the power and scrutinise whether the exercise of the power is covered by Article 49. As rule of law is a constitutional mandate in Bangladesh, no exercise of power, even by the President, will be arbitrary or discriminatory. Capricious exercise of the power makes it void. The recent presidential amnesty is void as it is arbitrary, because it was granted on political consideration. The presidential clemency is void because it is discriminatory as two other convicts were executed in the case, but Jhintu escaped the punishment.
In Maru Ram V India (AIR 1980 SC 2147) Krisna Iyer J. gave an example of a Chief Minister who released everyone in the prison in his state on his birth day. In the case he held that it will be an outrage on the constitution as he set all the prisoners free from the prison. If a notorious murderer has been sentenced by a court and the President remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a high up, it will be capricious exercise of power of pardon by the President. (Ibid, p. 2175).
Coming back to Bangladesh Mohiudding Ahmed Jhintu might file a writ petition in the High Court Division against the formation of Martial Law Court and his trial in such a court as there is no provision to appeal against the verdict of a Martial Law Court. If he was incriminated in the double murder case on political consideration he would have acquitted by the verdict of the higher court. Or he might file a petition to the President stating all the facts. President then might order a judicial inquiry into the matter. If the Judicial Inquiry Committee found that Jhintu was not involved in the double murder case, the President would then grant pardon according to the recommendation of the Committee. It would ensure justice and restore Jhitu's right to life and liberty. But the process through which Jhintu was granted pardon that was vicious. President Professor Iazuddin Ahmed arbitrarily exercised his prerogative power which he cannot do under the present provisions of the constitution. The offices of the President, Prime Minister, Home Minister and Law Minister cannot avoid their responsibility in applying the constitutional provision capriciously.
The author is a teacher, Department of Law, University of Dhaka.