Presidential clemency: Beyond question?
In a democracy, should the actions of the elected officials, including the head of the government or the head of the state, be beyond any question? The controversy has surfaced vis-à-vis the recent presidential clemency granted to 20 death-row inmates convicted by a speedy trial tribunal for allegedly killing a Jubo Dal leader in 2004.
"President Zillur Rahman has granted clemency to the 20 death convicts in Sabbir Ahmed Gama killing case as per his constitutional jurisdiction and there is no scope to create any dispute over the power of the president," Law Minister Shafique Ahmed said recently. He also said that the convicts in Jubo Dal leader Gama killing case had appealed for the president's mercy as per the rule and the president had the constitutional authority to pardon any convict.
The pardon was granted by the president in accordance with Article 49 of the Constitution (Prerogative of Mercy), which 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." However, as outlined in Article 48(3) of the constitution: "[S]ave that of appointing the prime minister and the chief justice, the president shall act in accordance with the advice of the prime minister." This clause would naturally lead one to assume that the pardon was granted in concurrence with the wishes of the PM.
Article 49 of the Constitution, which empowers the president to grant "mercy," does not explain the situations under which the president may exercise his prerogative power. It is imperative that this power should be exercised judiciously when all other avenues for seeking justice or redressing injustice have been exhausted, and should be offered to one with the highest degree of remorse in addition to service to the nation or to humanity or to one whose survival could potentially contribute to the cause of mankind.
Commutation of the death penalty of Colonel Taher, a wounded and decorated hero of our war of liberation, handed down by a martial law court, could have been an ideal case to follow the letter and the spirit of the constitutional prerogative of mercy.
Did the honourable president, in this instance, meet that implied expectation of the nation in granting the pardon? Unfortunately, the answer is not really a resounding yes. The case in question is a very unusual one. In the words of eminent jurist Dr. Shahdeen Malik: "Apparently, both the verdict and the presidential clemency seemed very unusual." On the one hand, awarding of capital punishment to 21 people for allegedly killing one person, and pardoning of 21 people in one go could be a record setting incident in judicial history.
It was reported in the news media that following the murder, 44 houses and 15 shops at Shahpara village and Amtali Bazar were ransacked and torched, allegedly by local BNP activists, and many families were uprooted from their houses for years. A son of a released convict told the media that 13 members of his family were accused of murder even though they had left Natore a year before the incident. He said they had to leave Natore following oppression by local BNP men after the 2001 election.
Taking into cognisance the absence of rule of law and partial functioning of judiciary during the last BNP-Jamaat governance, the judgment of the speedy tribunal in 2006 was not beyond any questions to start with. However, avenues for judicial remedy were far from exhausted. If they had been, presidential clemency could have been justified.
There are arguments that the presidential power of granting clemency is absolute. In any democracy, where there exists even a semblance of accountability, citizens have the right to know from the head of state himself the grounds for the presidential clemency. In fact, this is not the first time that the president of the Republic has granted clemency.
In November 2009, President Zillur Rahman made history by pardoning the son of the deputy leader of Parliament Syeda Sajeda Chowdhury. He 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. The president pardoned him, though he did not even surrender to the court in connection with any of the cases.
Apparently by persuading the PM to advise the president to do so, what service did Begum Sajeda offer to her son, to the institution of the presidency, to the millions of her party's loyal supporters, and to the countrymen in general who voted for the charter for change in the last general election?
The main opposition BNP has come up with its reaction. "Confusion has been created in people's mind whether killing was encouraged by the clemency," said Rafiqul Islam Mia, a member of the BNP standing committee. However, a little reflection will reveal how history has repeated itself. President Iajuddin Ahmed, in January 2005, granted presidential pardon to a double murder convict who was an active leader of the BNP's youth wing since its inception and currently happens to be a leader of an overseas branch of BNP.
The crime at issue was committed on January 25, 1982, when the country, for the second time, was under martial law, and the verdict of a martial law court, in which all four accused were awarded capital punishment, was proclaimed on July 20 of the same year. Two of the guilty were executed while the other two, including the convict in question, were absconding.
Neither of the two victims had any direct political links, and as such the double killing probably was not a political motivated one, nor was the murder case against the accused initiated out of political acrimony. The then law minister defended his support for the pardon as an act of "upholding human rights and democracy" -- a strange proposition from a strong proponent of "crossfire" killings.
Did our honourable presidents uphold the spirit of the prerogative of mercy as envisaged by the framers of the Constitution? The convict, in 2005, in his mercy petition to president Dr. Iajuddin Ahmed did not mention any of his contributions to the nation or mankind, rather, in favour of his clemency, he very candidly pointed out his "devotion to Shaheed President Ziaur Rahman and his 19 points programs," which incidentally were formulated during the tenure of his martial law regime. However, the nation is yet to know what was written in the mercy petitions to President Zillur Rahman of the 20 death convicts or that of the son of the deputy leader of the parliament.
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