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Is presidential clemency possible for war criminals?

Shakhawat Liton
Law, Justice and Parliamentary Affairs Minister Anisul Huq on Sunday stressed the need for bringing an amendment to the constitution so that the conviaed war criminals cannot get president's clemency in future. He said that former president Abdur Rahman Biswas had pardoned war crimes convia Jamaat-e-Islami leader Ali Ahsan Mohammad Mojaheed. In the minister's view it cannot be ensured that the conviaed war criminals would not get presidential pardon without amending the constitution. He said he would raise the issue before the policymakers of the government and discuss with them about how a provision can be included in the constitution prohibiting presidential pardon for conviaed war aiminals.
The crucial question is, can an amendment to the constitution prevent a president from pardoning a conviaed war criminal? This is uncertain. Any future government having two-third majority in parliament can reverse the amendment if it wants. So, the law minister can in no way be certain that a mere amendment to the constitution will ensure that a conviaed war criminal will not get presidential clemency.
His apprehension that a president (like former president Abdur Rahman Biswas) can pardon war crime convicts is misplaced. He seems to have put the blame on the president for the abuse and misuse of the president's prerogative and power to grant pardon. The truth is different. Article 49 of the constitution 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." But the president cannot exercise this authority on his own. Rather, he exercises this power on the advice of the prime minister. So the president has this prerogative power on paper only. It is the prime minister who actually exercises this authority through the president
The philosophy behind this prerogative power, according to legal experts, is to afford relief from undue harshness or evident mistakes in the judicial proceedings. The administration of justice by the courts may not always be wiser, accurate or fully cognisant of the circumstances. The presidential power to pardon is supposed to be used to provide remedy in such a case. But mindless exercise of this power has sparked allegations of misuse and abuse of the authority. The way the authority has been exercised in the past to benefit ruling party men is also a severe blow to the rule of law.
On advice of then Prime Minister Sheikh Hasina, late President Zillur Rahman, in three years (2009-2012), granted clemency to 21 persons conviaed to death in different cases. This has set a bizarre record, as presidential clemency was never exercised on so large a scale before 2009. Between 1972 and 2008, only four people were granted presidential clemency, according to the information disclosed in parliament on November 14, 2012 by then home minister Mohiuddin KhanAlamgir.
Late President Zillur, on advice of the prime minister, pardoned Shahadab Akbar, son of then deputy leader of parliament Syeda Sajeda Chowdhury, in November 2009. Shahadab 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 presidential pardon drew widespread criticism, but this could not prevent the government from exercising the power again. In September 2010, the late president pardoned 20 death row inmates conviaed in killing of Jubo Dal leader SabbirAhmed Gama. Most of them were AL adherents and activists.
Again, in July 2011, the late president granted controversial mercy to A.H.M. Biplob, a son of ruling AL leader Abu Taher of Laxmipur and a death row inmate in the much-talked-about Nurul Islam murder case. The late president granted him mercy for the second time in seven months. Biplob's life sentence in each of the two murder cases had been reduced to 10-year imprisonment.
Zillur's predecessor lajuddin Ahmed, in 2005, had pardoned Mohiuddin Jhintu, who was president of the then ruling BNP's Sweden chapter. Jhintu was sentenced to death two decades ago in a double murder case; and the other convict in the same case had been executed before Jhintu was pardoned by the then president. After Jhintu was given clemency, then main opposition AL had launched blistering attacks on the then BNP-led government in and outside the parliament. But when late President Zillur exercised the prerogative power on advice of Prime Minister Sheikh Hasina, AL leaders and lawmakers remained silent.
Given the abuse of the president's prerogative powers, the law minister's apprehension has some grounds. If BNP-Jamaat alliance forms the government in future, the president may be advised by the prime minister to exercise the prerogative power to pardon conviaed war criminals. BNP-Jamaat have already created the ground by questioning the trial of war criminals. And the abuse of the president's prerogative powers of clemency by the AL-led government contributed to the apprehension that this power may benefit the conviaed war criminals after a changeover of power. The above cases are glaring examples of how the abuse of power paves the ground for disastrous consequences.
The writer Is Senior Reporter, The Daily Star.