Mercy president's, responsibility PM's
Although the president exercises the right to grant a convict clemency, it is actually the prime minister who is responsible for it.
According to the constitution, the president can do nothing but to give consent when the prime minister sends a recommendation to pardon a convict, say legal experts.
As it goes, any person can file mercy petition through jail authorities. The jail authorities refer the plea to the home ministry and then to the law ministry. The law ministry verifies whether the person is eligible for mercy and then sends the plea to the home ministry, through which it goes to the prime minister for consideration.
Legal experts term the presidential clemency an extraordinary power, which should not be used arbitrarily. They said there was no guideline for exercising the power which had left a scope for abusing the authority.
“Neither the constitution nor the law has conferred the power to the president to refuse or modify a clemency proposal by the government,” said advocate Shahdeen Malik, adding that the president, as per the constitution, can only exercise his power in appointing the PM and the chief justice.
He said the granting of mercy had been incorporated in the constitution considering two aspects -- humanitarian grounds and wrong judgment.
“If there is a judgment, in which a person has been wrongly convicted and sentenced to death, and if that is proved five to 10 years after the conviction and if the president is sure about the wrong judgment, the person can be granted clemency,” Shahdeen Malik told The Daily Star on Thursday.
Asked if the power is being abused or used indiscriminately in the recent years, he said, “If most of the applications are not pending for many years, pardoning so many people in a year will probably amount to wrong use of power. This is common sense.”
He said every country had a guideline for using the power, but not here.
The lawyer said the guideline should include opinion of the victim of a crime, for which a person was convicted and punished. “Moreover, there must be consideration on humanitarian grounds, such as if the convict is suffering from severe illness like cancer.”
Adilur Rahman Khan, secretary of human rights body Odhikar, said the victims would be denied justice if the perpetrators were granted mercy through an administrative mechanism, going above the rule of law.
“It is very dangerous if any convict is pardoned on political consideration,” he told BBC Bangla Service Thursday referring to the clemency granted to an Awami League leader's son in Laxmipur.
Law Minister Shafique Ahmed, however, denied that the granting of clemency was on political consideration. He told the BBC Bangla Service that the mercy was given following some criteria.
Yesterday, emerging from a workshop at Hotel Ruposhi Bangla, the law minister said there was no scope for making the president's jurisdiction questionable and such authority of the president must be kept above all controversy.
The president had the power to pardon any convict, and he [president] had granted mercy of his own conscience and wisdom, he added.
However, Chairman of National Human Rights Commission Prof Mizanur Rahman believes granting of clemency to death sentence awardees will encourage more crimes in the society.
“The president's power to grant any convict mercy should be exercised wisely and ethically,” he said while speaking as chief guest at a roundtable styled “Child abduction, killing -- demanding ransom: Where is the end” organised by the daily Prothom Alo at its office yesterday.
Referring to the presidential clemency granted between 2009 and 2011 to 21 persons, who had been sentenced to death in different cases, the human rights chief said, “There is a question in people's mind that whether we have strictly maintained our ethics in all these cases.”
Twenty-five convicts were granted clemency in the country since the independence. Of them, one was granted mercy in 1986, two during the last BNP-Jamaat rule in 2005, one in 2008 during the tenure of caretaker government and the rest during the Awami League tenure between 2009 and 2011, Home Minister MK Alamgir told this to parliament on Wednesday.
The last presidential clemency that was granted to Biplob, son of AL leader and Mayor of Laxmipur municipality Abu Taher, touched off huge criticism across the country. A convicted killer Biplob was pardoned in July last year.
In 2010, the president also pardoned 20 death row convicts in a case filed in connection with the killing of Natore Jubo Dal leader Sabbir Ahmed Gama.
In 2005, the then president granted mercy to double murder convict Mohiuddin Zintu. This act too drew huge flak.
The High Court in April this year, while delivering a verdict in a case challenging presidential clemency to a convicted fugitive, observed, “It would be a misuse of power and an arbitrary decision from the viewpoint of the rule of law if the president pardons a convicted fugitive.”
Citing examples of various cases, the HC also said it had the jurisdiction to examine whether the president had misused his constitutional power.
In a written judgment in May, the HC said the powers of the president and the government to pardon, suspend or remit sentences of any convict should be exercised fairly and on unbiased relevant principles.
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