The prerogative of mercy is an important constitutional safeguard not only in Bangladeshi criminal justice system but also in many countries of the world mostly in the common law legal system. It provides a special avenue for criminal cases to be considered by the President or the Head of the State where a person may have been wrongly convicted or sentenced.
The Constitution of the People’s Republic of Bangladesh empowers President to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.
The literal meaning is that it is an exclusive power of the President and he can exercise this power without considering anything as there are no guidelines given in law.
In the light of literal interpretation of law, the President’s recent decision of granting mercy to a convicted killer AHM Biplob for the second time in seven months was fall with in legal ambit. But in reality, the incident drew widespread criticism from different sections, including rights groups, legal experts and the media. National Human Rights Commission (NHRC) Chairman Dr. Mizanur Rahman reacted sharply to the presidential clemencies, saying the nation must come out of this culture and a convicted criminal should in no way be forgiven.
Probably the people of Bangladesh want to know why President exercised prerogative power of mercy to reduce the punishment of a criminal offender two times consecutively.
Presumably, President has interpreted art.49 of the constitution according to the literal rule of interpretation which can not stand alone. In the present-days judiciary and the legal world have adopted purposive approach of legal interpretation which signifies not only the literal meaning of law but also the actual purpose of making law.
According to Lord Simons, “the judge is to look to the purpose of the legislation and then must look at the words and interpret them according to the purpose.”
Why the provision of art.49 inserted in the constitution? It is obvious the constitutional expert did not want to empower president to use prerogative of mercy subjectively. It is believed, prerogative of mercy provision inserted in the constitution only to avoid miscarriage of justice.
In New Zealand, prerogative of mercy will normally be exercised where it appears that a miscarriage of justice is likely to have occurred. In Scotland, a miscarriage of justice is the only element to consider prerogative of mercy in a criminal case.
Biplob is the son of Abu Taher, an Awami League leader and mayor of Laxmipur municipality. Has the political identity been considered to exercise prerogative of mercy? If so justice has denied. To the best of knowledge there is no precedent in the world where a criminal has got prerogative of mercy two times within seven months. The judiciary or the legislator might set certain guidelines to exercise the prerogative of mercy and turn it into a real safeguard from miscarriage of Justice.
Sources:
[i] The Constitution of the People’s Republic of Bangladesh, Article: 49
[ii] http://www.thedailystar.net/newDesign/news-details.php?nid=224063 2/27/2012 1:46:10 PM
[iii] Maunsell v Ollins [1975] AC 373
[iv] http://gg.govt.nz/role/royalprerogative.htm visited on 2/29/2012 3:42:26 AM
[v] http://www.scotland.gov.uk/Topics/Justice/law/miscarriages visited 2/27/2012 1:59:28 AM
The writer is an LL.M from Liverpool John Moores University and LL.B (Hons), LL.M of Dhaka University is a lawyer.
