National Consensus Commission Vice-Chairman Professor Ali Riaz recently said most political parties had acknowledged that Article 49 of the constitution, which relates to presidential clemency, had long been misused for political purposes.
As such, he brought up the issue of revising the constitutional article and including a provision in the article that the presidential clemency power shall be applied in line with a new law.
This decision has raised numerous questions, most pressing among them:
What is Article 49?
According to the letter of the law, Bangladesh's Constitution empowers the president to grant pardons under Article 49, which states, "The president shall have the power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority".
In its current form, the article does not include any specific criteria or legal procedures to guide the use of this power. However, such discretionary powers are often a source of strife and in this case it appears to be no different.
"While presidential clemency is a necessary tool for correcting judicial errors or showing mercy, its use must be guided by law and be free from political influence. The proposed amendment to Article 49 aims to ensure exactly that, by placing this powerful authority within a transparent and legally accountable framework," Prof Riaz said.
In light of this, let's look at some high-profile cases in Bangladesh where this article was invoked.
Case 1: 2018
Name: Tofayel Ahmed Joseph
Convicted of: Murder of Freedom Party (now-defunct) leader Mustafizur Rahman
Background: The Speedy Trial Tribunal of Dhaka sentenced Joseph to death on 25 April 2004.
Clemency: President Abdul Hamid pardoned Joseph, among the most fearsome gangsters of the 90s.
Case 2: 2021
Name: Haris Ahmed, Anis Ahmed
Charge: Convicted of the murder businessman Mostafizur Rahman Mostafa in 1996
Background: Police issued a charge sheet against Haris and Ahmed in the case. On 25 May 2004, Dhaka's Speedy Trial Tribunal-3 announced the verdict in this case, sentencing Haris and Anis to life in prison.
Clemency: President Abdul Hamid pardoned Haris and Anis, the two brothers of former army chief General Aziz Ahmed.
Case 3: 2014
Name: Anisur Rahman, SM Firoz, Faisal Hossain, Sentu Shah, Shahjahan Shah, Jahedul Islam, Badal Shah, Fazlul Haq Shah, Faruq Hossain, Abdul Jalil, Jahurul Shah,Sajjad Hossain, Sohag, Mohammad Bablu, Abul, Ataur, Ashraf, Farmazul, Fakruddin and Wahidur Rahman (2014)
Charge: Murder of Jubo League leader Sabbir Hossain Gama in 2004
Background: Speedy Trial Tribunal, Dhaka convicted and sentenced 21 persons to death for killing the Jubo League leader.
Clemency: President Zillur Rahman pardoned them on September 6, 2014. Only one convict, Akhbar Ali, was not pardoned. He remains at large.
Evolution of the 'prerogative of mercy'
A pardon from the highest levels has existed since before governments were even a thing, then known as a 'prerogative of mercy'.
In the middle ages, kings would pardon offenders indiscriminately, sometimes offering clemency for service in their armies. However, even during medieval times, attempts were made to curtail monarchs' unfettered prerogative mercy power.
While such a measure was not written into law, similar practices were widespread in Ancient Egypt and India. For example, William the Conqueror, the former King of England, and successors claimed divine authority, including the right to dispense justice and mercy.
One of the earliest formal systems of clemency appears in China, possibly as early as the Han Dynasty (206 BCE–220 CE). Similarly, under the Roman Empire, the emperor had formal powers to remit sentences, often by petition.
Presidential clemency around the world today
Today, presidential clemency is recognised as a legitimate power globally, but many countries impose clear rules and procedures to prevent abuse.
In the United States, the president has broad clemency powers under Article II, Section 2 of the US Constitution.
As of June 8 this year, in the four-and-a-half months in office in his second term as US president, Trump has surpassed all but three post-World War II presidents for the number of clemency actions, which include pardons and commutations.
His total is dominated by the roughly 1,500 pardons he granted to people who faced legal consequences from their participation in the events of January 6, 2021, when pro-Trump rioters stormed the US Capitol.
In India, the president has similar powers under Article 72 of the Constitution, but the Supreme Court (SC) has made it clear that the president must act on the advice of the Council of Ministers.
There is a prominent case, Kehar Singh v. Union of India (1989), which affirmed that this advice must be legally sound, providing a safeguard against discretionary decisions.
While the court acknowledged the president's discretion at the time, it also affirmed the judiciary's power to review the president's decision in cases of arbitrary, mala fide, or capricious exercise of this power.
'Amendment alone not enough to ensure reforms'
Constitutional Expert and Senior Advocate of Bangladesh Supreme Court, Dr Shahdeen Malik, told Dhaka Stream that in the 55 years since the country's independence, there have likely been fewer than 50 cases in which the President has granted a pardon.
"In most of these cases, the convicts were suffering from severe health conditions. So, the president exercised the power of clemency on humanitarian grounds," he said.
"Both the Supreme Courts of Bangladesh and India have issued directives outlining how this constitutional power should be exercised. However, no power is absolute," he said.
Dr Rabiul Islam, a constitutional expert and professor of law at Jahangirnagar University, told Dhaka Stream that introducing a semi-presidential system and federal structure should be the primary focus of constitutional reform.
Otherwise, most of the reform would be unsustainable.
"The proposal to amend Article 49 is commendable, but without addressing the federal structure, such reforms will not be effective," he said.
Prof Rabiul emphasised that restoring true democracy and ensuring transparency would require a fundamental change in the structure of government.
"We have numerous constitutional provisions that are judiciary enforceable but not properly implemented, such as Article 26-47, the High Court (HC) division's order on writ petitions.
"Although Article 25 of the constitution emphasises that the state shall conduct international relations based on respect for sovereignty, equality, non-interference, peaceful dispute resolution, and adherence to international law and the UN Charter, these principles are often not followed in practice.
"Without first adopting a semi-presidential system and a federal structure, any attempt to amend Article 49 will likely be ineffective to bring about meaningful reform."
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