The clemency question

The presidential power to grant clemency has once again attracted large-scale media attention. The Daily Star editorially expressed its concern on the subject on February 28, in addition to news analysis of the issue on the same day. The seriousness of the matter can be gauged from the said analysis which says that the "exercise of the presidential power to grant clemency over the last two years has led to a perception of the misuse and abuse of such extraordinary constitutional authority."
Let us first draw attention to the legal stipulation on the subject. Article 49 of the Constitution of the Republic 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." In addition, the substantive procedural law, that is the Criminal Procedure Code, incorporates provisions of the power of the government to suspend or remit sentences and to also commute punishment in Sections 401 and 402. Such powers may also be exercised in the case of sentences of death.
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.
Interestingly but unfortunately, the clemency issue in question has been politicised in Bangladesh and the major political parties have unseemly ventured to reap political benefits in the process, while remaining oblivious of the ruinous ramifications on the body politic.
It is thus no wonder that the then main opposition Awami League launched a blistering attack in and outside parliament on the then BNP-led government over the grant of clemency. At present, however, ruling Awami League leaders and lawmakers have chosen to remain silent about the presidential clemency.
Strangely enough, in the current parliament the parliamentary standing committee on the law ministry has finally shelved its plan in January 2010 to look into the process of granting presidential mercy to BNP-allied Jhintu to avoid a discussion on Awami League blessed Shahadab Akbar.
The news analysis of The Daily Star comments that "the wholesale presidential clemency to ruling party men has pushed the presidency into political controversy undermining people's expectations of it. And it has also raised questions about the presidential power to pardon, which though, according to legal experts, is necessary for peace and good governance."
The premonition is that in the fitness of things the clemency in question and that of 2005 do not appear to be the "Rarest of the Rare" variety where the use of presidential prerogative was necessitated by public interest, notwithstanding the accusations and counteraccusations of lawyer-politicians across the political divide.
Repealing of the presidential pardon has been suggested as a remedy and the attention of the jurists and constitutional experts has been sought for a healthy resolution. Legally speaking, the government retains the authority to exempt accused persons from criminal prosecution at different stages of trial and also show mercy to the convicted following the conclusion of the trial.
It is, however, desirable that in case of pardon the executive must be prepared to substantiate and justify its action on grounds of justice, equity and of public policy. There is a need to remember that in case of pardon it affects both the punishment prescribed for the offence and the guilt of the offender. In other words, a full pardon may blot out the guilt itself.
It needs to be impressed upon that while the act of granting pardon is an executive function the prosecution of an offender for a serious criminal offence is primarily the responsibility of the same executive. In criminal prosecution, the state, in effect, is the complainant, according to a considered view.
It would be worth remembering that our socio-political situation turned for the worse with the tragic murder of the Father of the Nation and four national leaders. For many years these offences were not legally and appropriately treated by the establishment till a favourable political scene unfolded. Such realities do have substantial impact on the enforcement and adjudication temperament and culture. Between 1976-1979 many heinous criminal cases involving murder, abduction, grievous hurt, amongst others, were allegedly withdrawn as part of a deal struck with some political parties by the then establishment.
As of now, doubts have been expressed as to whether a precedent is being created to believe that the executive branch can do what the judiciary should be doing and consequently there is not much wrong if desired distinction between the two vital organs of the state is blurred; and exoneration from criminal charges should be easy when political control is assured.
The moot question is, should standards of justice vary with variance in the colour of political establishment? 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.

The writer is a columnist of The Daily Star.