Presidential pardon shouldn't be tool of those in power

The Judicial Reform Commission’s report has put forward several important recommendations which, if implemented, are expected to enhance transparency and accountability not only within the judiciary but also across various aspects of state governance.

On Wednesday, the Chief Adviser of the interim government Professor Muhammad Yunus received the report from the head of the judicial reforms commission, Justice Shah Abu Nayeem Mominur Rahman. One particular aspect of this report that has drawn attention is the recommendation to restrict the president’s power of pardon.

Article 49 of our constitution states: “The President shall have the power to grant pardons, reprieves and respites, to remit, to suspend or commute any sentence passed by any court, tribunal or any authority.” Similar provisions exist in many other countries. However, the manner in which past governments have exploited this provision for arbitrary use of presidential clemency, is not only alarming but also contradictory to the principles of the rule of law.

The provision for presidential clemency was originally intended for exceptional circumstances. However, those in power have frequently used it as a tool to exonerate party-affiliated offenders. Although the constitution grants the president the power of pardon, in practice, it ultimately falls under the jurisdiction of the prime minister or the head of the executive branch. The executive sends a proposal to the president, who merely signs it. In many cases, the president may not even be familiar with the individual whose sentence is being recommended for the remission.

The presidential pardon provision has been misused during the tenure of all governments. Those who oppose this power while in opposition often become desperate to secure the release of their convicted party members once in power. In this context, the recommendation in the Judicial Reform Commission’s report to regulate the president’s power of pardon is highly significant. The Commission has proposed the establishment of a regulatory board, meaning that any petition for clemency submitted to the president would first be referred to this board. If the board determines that the petitioner is eligible for clemency, it will make recommendation to the president otherwise, it will reject the request. The president would not have the authority to make a unilateral decision on such matters.

In this context, reference can be made to a writ petition filed in the High Court on 20 January. The petition sought a directive for the formulation of guidelines regarding the President’s power of clemency. The petitioner, Supreme Court lawyer Israt Hasan stated to Prothom Alo that various incidents have demonstrated the misuse of presidential clemency in Bangladesh through government influence, where political ideology has been a determining factor in granting pardons to convicted individuals. The practice contradicts articles 7, 27, 31 and 32 of the constitution. Therefore, it is essential to establish guidelines to regulate the exercise of this power.

There is no fundamental difference between the petitioner’s appeal to the High Court and the recommendations of the Judicial Reform Commission. Even if a regulatory board is established, it must function based on a well-defined set of guidelines. Hence, we believe that the interim government should take necessary steps in light of the Reform Commission’s recommendations.

It is unacceptable for convicted criminals to repeatedly secure pardon under successive governments through the exploitation of the constitutional provision for presidential clemency.