Prerogative mercy power of the President
The Constitution of Bangladesh empowers President of Bangladesh with the power to grant pardons. Article 49 of the Constitution provides that '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'.
This power is unfettered and absolute. No one is allowed to challenge the decision of the President in any court of law or to any other authority in this respect. The power in its face look benevolent power and the executive head of different countries are empowered with this power in a different name.
The philosophy of pardoning power is that in a society with no other means of flexibility, the pardon served as the sole instrument of justice for those who should not be punished. Earlier, British monarch used the pardoning power as a method of recruiting soldiers during a war. Critics argue that it is the executive interference over the justice system. It is a unique executive power that cannot be checked by the other branches of government. They argue that some sort of restraining mechanism should be developed to check it.
A guideline should be promulgated that in what circumstances this power should be used. Bangladesh as a former British colony follows the Common law system. Presidents' prerogative mercy power is a common feature in the common law justice system.
Anglo-Saxon King Ine of Wessex (668-725 A.D.) first empowered with the power of prerogative mercy by a law which provided that if any person fights in the king's home it's all about king's discretionary to take decision about that personal life and property. This was continued by the subsequent monarchs.
Kings used to pardon offenders indiscriminately to everyone who serves for a year in the army at his own cost reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. However, several attempts were taken to curtail monarchs unfettered prerogative mercy power.
Critics argue that pardoning power is the executive interference over criminal and civil proceedings of the judiciary. Also pardoning is not given indiscriminately rather politically affiliated and an influential person usually privileges it. Sometimes offenders of grave crimes such as manslaughters, robberies, felonies escape from the judicial sanction through pardoning. Through pardoning, king interferes with the rights guaranteed to third persons.
In 1673, a judicial tribunal opined that the king could not dispense with laws that affected a man's life, liberty, or estate; the king could not grant a man a dispensation to annoy or damage another; he could not grant a man a dispensation to avoid doing that which he was required to do for the public benefit; and he could not grant a dispensation that would deprive a third party of an advantage that would have accrued to that party had the dispensation not been granted."
Thus even a royal pardon could not relieve one convicted of homicide from prosecution by a revengeful kinsman or from the payment of reparations to the kinsman. The kinsman had the right to appeal. The pardoning power could not, therefore, deprive a private individual of his remedy at law.
In England, it is evolved that King can only pardon under an oath and in the case where one slayeth another in his own Defense, or by Misfortune. In 1340 lawmakers of Great Britain warned that pardon should only be granted within the ambit of his oath and granting a pardon in violation of his oath would be holden for none.
In USA critic argued that pardons for treason should not be allowed without Congressional consent. Although the Constitution confers the pardoning power on the President in general terms, the judiciary has served as the supreme interpreter of the scope of constitutional powers since Marbury v. Madison. In United States v. Wilson, Chief Justice Marshall defined the power:
The Constitution gives to the President in general terms, the power to grant reprieves and pardons for offences against the United States.
As this power has been exercised, from time immemorial, by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.
By and large following factors are generally considered while pardoning:
* The wellbeing of society and the convict.
* The period of imprisonment undergone and the remaining period.
* The gravity of the offence.
* The age of the prisoner and the reasonable expectation of his longevity.
* The health of the prisoner.
* Good prison record.
* Post-conviction conduct, character and reputation.
* Remorse and atonement.
* Deference to public opinion.
Arguments for pardoning are that it redressing the injustice done by the judiciary. Sometimes pardoning power is a useful tool used for the broader public policy purpose of ensuring peace and tranquillity in the case of uprisings and to bring peace after internal conflicts.
Shahnewaj is Advocate and Programme Officer- Law and Policy Affairs at ARTICLE 19, Bangladesh and South Asia