Presidential clemency for a convicted murderer!

Like the constitutions of other countries that have a presidential, parliamentary, or dual system of government, the constitution of Bangladesh empowers the President to grant pardons, reprieves and respites and to remit, suspend, or commute any sentence passed by any court, tribunal, or other authority. He exercises this power in accordance with the advice of the Prime Minister.

The US President's power to grant pardons and reprieves is judicial in nature, and it is exclusive. The US constitution authorises the President to grant reprieves and pardons for offences against the United States, except in cases of impeachment. The King or the Queen of Britain can grant pardon and reprieves. He or she exercises this power on the advice of the Prime Minister. The constitution of France vests in the President the power of pardon. The constitution of India empowers the President to grant pardons and reprieves, and suspend, remit, or commute sentences to persons convicted by court martial, and in all cases in which sentences to death have been passed. In the exercise of his functions, the President acts in accordance with advice of the council of ministers headed by the Prime Minister. The President of Pakistan is empowered by the constitution to grant pardon, reprieve, and respite, and to remit, suspend, or commute any sentence passed by any court, tribunal, or other authority.

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Let me now return to the case under discussion. According to newspaper reports, a Dhaka court, in1982, sentenced Mohiuddin Jhintu, a former leader of Jatiyatabadi Chhatra Dal, along with two other persons, to death for murdering two Demra businessmen -- Abdul Khaleq Rana and Firoz Al Mamun. The judgement was delivered in absentia. After evading arrest for more than two decades, Jintu surrendered to the metropolitan sessions judge's court, Dhaka on January 3 this year and appealed to the President for mercy. He was granted amnesty within ten days of his surrender. In his petition to the President, Jintu claimed to be the founder of the Sweden chapter of the Bangladesh Nationalist Party (BNP).

As required under Rule 10 of rules of business, 1996, the home affairs ministry sent the case to the law ministry for its opinion. When the standing committee blamed the law ministry for not giving appropriate opinion, the Minister for Law informed the committee that the home affairs ministry, which sought the opinion of the law ministry on the petition seeking the President's mercy, did not mention the execution of two other persons convicted in the same crime in the summary note to the law ministry. He had to go by rules of business and he was not empowered to ask for other documents. But the committee chairman, Khandakar Mahbubuddin Ahmed, an eminent jurist and a BNP lawmaker, disagreed with the law minister and said that the law ministry should not give an opinion casually on a case referred to it. Echoing the committee chairman, the main opposition Awami League (AL) lawmaker in the committee Suranjit Sengupta has said that the Presidents of the US and India and the Queen of Britain have not exercised the power "whimsically." The ministries or the departments concerned have played the vital role in exercising power. Some members of the committee reportedly accused the Law Minister and the Prime Minister of suppressing facts with a political motive. They also observed that the "presidential mercy was given in a hurry."

In a press briefing on July 24 the Law Minister further tried to exonerate his ministry by saying that his ministry did not recommend to provide presidential clemency to the convicted murderer Jintu. His ministry just opined that it was the discretion of the President to give or not to give clemency to any convict. Had the home affairs ministry mentioned in the summary note that the death penalties of two co-convicts in the case had already been carried out, his ministry would have definitely opined otherwise.

Let us see as to what extent the ministries and offices concerned discharged their responsibilities in dealing with the case.

Article 55(6) of the constitution provides that the President shall make rules for the allocation and transaction of business of government. Pursuant to the above constitutional provision, the President, in supersession of all previous rules and orders, has made rules of business (ROB), 1996. Chapter 111 of the ROB provides the mechanism and procedure for inter-ministerial consultation of the cases of the ministries /divisions. The ROB state that when the subject of a case concerns more than one ministry/division no orders shall be issued, nor shall the case be submitted to the Prime Minister or the cabinet until it has been considered by all the ministries/divisions concerned and their views are properly recorded. If no agreement is reached among the ministries/divisions concerned, the ministry/division placing the summary before the Prime Minister or the cabinet shall state in the summary the points of differences and the recommendations of each ministry/division concerned.

Secretariat instructions, which have been issued for efficient transaction of business in the secretariat commonly known as the seat of the government, have further clarified the issue. Instruction 158 says that the provisions of the ROB regarding consultations with other ministries/divisions will be carefully observed. The initiating ministry/division of a case will be responsible for consulting other ministries/divisions that may be concerned with it. Such consultation will be in the following forms: (a) by sending a written reference specifying the points on which the advice of the other ministry/division is sought; (b) by personal consultation in the event of a difference of opinion or delay. The instruction further says that attention will be paid to special instructions issued by the various ministries/divisions for consultation with them. As far as it is known, the law ministry and the finance ministry have issued long before special instructions on the procedure of consultation with them.

Rule 14 of the ROB has specified the cases that would require consultation with the law ministry. Rule 14 (1)(vi) provides that the law ministry shall be consulted before tendering advice on a mercy petition against an order of death sentence and pardon, reprieve, respite, remission, suspension, or commutation of any sentence.

In the instant case, the home affairs ministry was under obligation to follow the procedure laid down by the ROB and secretariat instructions for inter-ministerial consultations. It was a serious failure on the part of the home affairs ministry if it had not furnished full facts of the case to the law ministry and asked for its opinion on specific points. As of today, nothing has been heard from the home ministry against the accusation of the law ministry.

The law ministry cannot absolve itself of its responsibility in this case. If the summary note of the home affairs ministry did neither contain full facts of the case nor did it specify the points on which the opinion(s) of the law ministry was sought, the latter could return the file to the former for resending the case with necessary information and specific points of reference. The constitutional provision empowering the President to grant pardons to any convict is supposed to be known by any officer working in the ministries/divisions of the government. It was not necessary for the home affairs ministry to send the case to the law ministry only to be reminded of that constitutional provision. It seems that the law ministry avoided its opinion on the case considering its political implication.

Article 48(3) of the constitution says that in the exercise of all his functions, save only that of appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister. In view of the constitutional provision referred to above, the Prime Minister was required to send this case to the President with a definite advice. And to give a specific advice in this case the Prime Minister needed clear-cut opinion of the law ministry. The constitution has not given the President any discretionary power to grant pardon to a convict. In such a case, the President has to act according to the advice tendered by the Prime Minister.

The Law Minister has tried to shift the blame on the officers of the Prime Minister's office (PMO). He has said that blaming the Prime Minister on the issue is wrong, as it is not possible for a Prime Minister to look into each and every file. In fact, the officers in charge of the PMO scrutinise the files, and the Prime Minister just signs them. What has really transpired is that the PMO failed to discharge its responsibility in dealing with the case.

It has been reported in some newspapers that Local Government, Rural Development and Cooperatives Minister Abdul Mannan Bhuiyan who is also minister-in-charge of the home affairs ministry in the absence of the State Minister for Home Affairs has asked the home affairs ministry to submit a report on the ministry's role in managing amnesty for the convicted murderer Mohiuddin Jhintu. Many observers regard this as eyewash. When the home affairs ministry itself has allegedly mishandled the case on political consideration, what sort of report can be expected from it?

While talking to the journalists on July 25, Suranjit Sengupta, AL presidium member and a member in the parliamentary standing committee on law ministry, demanded neutral investigation into the "dubious quick process of appeal" to seek presidential clemency.

To conclude, presidential pardon to a convicted murderer has created frustration and anger among the law-abiding citizens of the country. The government should immediately go for a high level inquiry. Another probable remedy is the repealing of the presidential clemency to the convicted murderer. The constitutional experts and jurists of the country may address this issue.

M. Abdul Latif Mondal is a former Secretary to the government.