The Judicial Reform Commission has recommended restricting the exclusive power of the President and the executive branch to pardons criminals.
The commission has suggested that the government enact a law under the title 'The Pardon Act', which will determine the power of President and all other executive to grant pardons to the criminals, if needed.
The commission report said that a Pardon Board will be formed through the Pardon Act. The President or the concerned executive branch will grant pardons based on the recommendations received by this six-member board headed by the chief law officer of the state 'Attorney General'.
The government formed an eight-member Reform Commission on October 3 under the leadership of former Appellate Division Justice Shah Abu Naeem Mominur Rahman to propose necessary reforms in the judiciary. Since then, the commission has undertaken various activities, including on-site visits to various courts and exchange of views. After lengthy discussions and reviews, the commission finalized its report proposing reforms in a total of 30 issues in the judiciary including restricting the President's exclusive power to grant pardons. The report has already handed over to Chief Advisor Dr Mohammad Yunus for next course of action.
The other recommendations include appointment and discipline of judges in the Supreme Court, appointment and conditions of service of judges in subordinate courts, establishment of a separate secretariat in the Supreme Court, decentralization of the court system, establishment of a permanent attorney service, formation of an independent criminal investigation agency, resolving the suffering of litigants, taking effective steps to stop corruption, implementation of legal aid programmes and alternative dispute resolution systems, reform of existing laws, legal profession and legal education, prevention of false and harassment cases, reduction of backlog of cases, abolition of the power of executive magistrates to issue sentences by mobile courts and freeing the judiciary from political influence.
In addition, the commission has also prepared drafts of three ordinances namely the Supreme Court Judges Appointment Commission Ordinance, the Code of Conduct for Members of the Bangladesh Judicial Service, and the Legal Aid and Mediation Services Provision Ordinance. These drafts have been submitted with the report of the commission.
In its report, the commission said: Currently, the issues of pardon, remission of sentence, reduction of sentence, suspension of sentence and delay of sentence are governed by Article 49 of the Constitution and Sections 401, 402 and 402A of the Criminal Procedure of Code 1898. Article 49 of the Constitution empowers the President to grant pardon, delay and respite of any sentence passed by any court, tribunal or other authority and to remit, suspend or reduce any sentence.
The commission's report states that in different countries of the world, some rules have been established, written and unwritten, for the heads of state to use this power of pardon or show power. The High Courts of different countries also play a major role behind these rules.
The report states that it is well known that the government has been abusing the power of pardon of the President for political purposes in recent years and calls for the enactment of laws and the formation of a board to control it.
It states that the pardon board will meet at least twice a year in January and July. The government will arrange honorarium for the members according to the board meeting. Interested convicted persons will apply for pardon to the President through the Attorney General in the prescribed form. After scrutinizing the application, the Attorney General will convene a meeting of the pardon board.
'If the board cannot agree on the decision to grant pardon, the decision will be taken through a secret ballot. The board decision will inform the President or the related executive department. The President or the concerned executive department will grant pardon based on the recommendations made by the board. In this case, the commission has also recommended following 10 factors, including the magnitude and type of crime, and the behaviour of the offender,' according to the report recommendations.
Meanwhile, a rule issued by the High Court asking the authorities concerned to explain why the president's power to pardon convicted individuals without a clear policy framework should not be declared illegal and unconstitutional, is currently pending for disposal.
In response to a writ petition, the HC bench comprising Justice Farah Mahbub and Justice Debashish Roy Chowdhury on March 3 issued the rule that also sought an explanation as to why a policy regarding the exercise of the President's power to pardon convicts should not be created.
Supreme Court lawyer Advocate Ishrat Hasan, who filed the writ petition, said that the president's power to pardon had been repeatedly misused, particularly during the previous government when convicted murderers were pardoned.
She said that Article 49 of the Constitution grants the President the power to pardon. However, this power is absolute and lacks any policy framework.
There are no guidelines on who is being pardoned or on what basis, which contradicts Articles 7, 27, 31, and 32 of the Constitution. Due to the misuse of this power, many convicted criminals have been pardoned. Among them, former army chief's brother Joseph and Aslam Fakir are notable examples, Ishrat Hasan added.
