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The President’s Limit to pardon a Convict under Article 49 of the Constitution of Bangladesh

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Article 49 of the Constitution of Bangladesh gives the President the right to pardon. Although 15 amendments have been made to the constitution since its enactment, it has never been amended, although the serial number of the Article was first changed to 58 by the Fourth Amendment and then restored to 49 by the Twelfth Amendment. Although post-independence Bangladesh has been governed by both a parliamentary and a presidential system, and the powers of the President and the Prime Minister have changed during both systems, the rights conferred on the President in this Article remain unchanged.

While the country had a presidential system of government, its executive power was vested in the President, although in the present parliamentary system of government it is vested in the Prime Minister. Article 49 gives the President the power to pardon, stating that the President shall have the power to grant pardon, delay and pardon of any sentence imposed by any court, tribunal or any other authority and to suspend or reduce any sentence. In the system of government governed by the President, the President could exercise this power alone, but in the system of government of the parliamentary system, this power vested in the President is subject to the conditions mentioned in clause (3) of Article 48. Clause (3) of Article 48 states that the President shall act in accordance with the advice of the Prime Minister in discharging all his other duties except in the case of appointment of the Prime Minister in accordance with Article 56 (3) of the Constitution and the Chief Justice in accordance with Article 95 (1). Pursuant to clause (3) of Article 56, even if the President is empowered to appoint the Prime Minister and the Chief Justice by his sole decision, he cannot perform all his other duties without the advice of the Prime Minister. It should be noted that the powers vested in the President in appointing the Prime Minister and the Chief Justice are not arbitrary. This is because there is no opportunity for the President to appoint anyone other than the confidant of the majority of the Members of Parliament as the Prime Minister after or at any other time after the National Parliamentary election. In the case of the appointment of a Chief Justice, if the President, by exercising his discretionary power, overrides the most senior judge in the Appellate Division, the neutrality of the President, who is regarded as the guardian of the country, will be violated.

The powers conferred on the President by Article 49 are exercised by the President in two ways. One is the apology by the convict and the other is the apology by the President to the convict on the recommendation of the government on a special day of the country. In both cases, the President cannot exercise his power without the recommendation of the Prime Minister. According to our Penal Code, an offender can be given five types of punishment by a court or tribunal at the end of the trial on the basis of proof of guilt, namely, death penalty, life imprisonment, rigorous or non-rigorous imprisonment of any term, penalty for confiscation of property and fine. The power conferred on the President by the Constitution under Article 49 may be exercised by the President on the recommendation of the Prime Minister, who may, by exercising that power, pardon, delay, pause, pause, suspend or reduce any penalty. If an apology is made to the President for any of the above punishments, he may grant any remedy referred to in Article 49 through pardon.

The opinion of a former law minister with the title of Barrister on whether the President can exercise this power under the International Crimes Tribunal is not in accordance with the provisions of the Vienna Convention. In this regard, it appears in our Constitution that the President is empowered to pardon, delay, pause, pardon, suspend or reduce any other form of punishment, including the death penalty. The Article clearly states that the President has the power to impose such powers on any court, tribunal or any other authority. The right of the convict under the International Crimes Tribunal Act to seek pardon from the Supreme Court through a writ petition for violation of fundamental rights under the Constitution does not in any way diminish the power of the President conferred by Article 49. Therefore, the opinion expressed by the former law minister in this regard is not considered justified in the light of the spirit of Article 49 of the Constitution. It is to be noted that the First Amendment of the Constitution includes the insertion of clauses (3) to Article 47 and Article 47A  to preclude those against whom genocide, crimes against humanity or war crimes are applicable from remedies and rights guaranteed under Article 31, Clauses (1) and (3) of Article 35, and 44 of the Constitution.

The right to pardon given to the President in Article 49 of the Constitution is basically an opportunity for the ruling entity to exercise the power through the President. The President cannot, without the recommendation of the Prime Minister or the Government, grant any remedy to a convicted apology seeker by exercising his discretionary power. In our parliamentary system of government, all the executive powers of the government are vested in the Prime Minister, so the aspirations of the Prime Minister are the aspirations of the government. Therefore, the recommendation made to the President in response to the wishes of the Prime Minister is the recommendation of the ruling entity.

The power given to the President to grant pardon in the case of certain punishments under Article 49 of the Constitution, the Criminal Procedure Code also gives the similar power to the government in the case of certain punishments.  Sections 401, 402 and 402A of the Criminal Procedure Code are relevant in this regard. Sub-sections (1), (2) and (5) of section 401 are particularly relevant in the synthesis of the Constitutional Article in question. Sub-section (1) of section 401 states that when a person is convicted of an offense, the Government may at any time, unconditionally or subject to the conditions accepted by the convicted person, suspend the effect of his sentence or commute the imposed sentence in whole or in part. Sub-section (2) of that section states that when an application for suspension or remission of sentence is made to the Government, the Government may, if necessary, ask the judge of the court to give his opinion with reason on whether the application has been granted or rejected and a statement of that opinion, and also may ask for a copy of the judicial document of the convict or to forward the status of his proceedings.

Sub-section (5) of the same section states that nothing contained in this section shall be deemed to be an interference with the President’s right to pardon, delay or suspend a sentence.

Section 402 of the Criminal Procedure Code states that the Government may, without infringing upon sections 54 and 55 of the Penal Code, reduce any of the following sentences without the consent of the convicted person to the following sentence, such as life imprisonment in place of death, imprisonment for any term Penalty.

Section 402A of the Criminal Procedure Code states that the power conferred on the government by section 401 402 may be exercised by the President in the case of death penalty.

Section 54 of the Penal Code states that in each case where the death penalty can be imposed, the government may reduce any other sentence imposed under the rule without the consent of the offender. Observing Section 55 of the same rule, it appears that in every case where life imprisonment may be imposed, the government may reduce the sentence to any term of less than 20 years without the consent of the offender.

The idea derived from sections 401 and 402 of the Criminal Procedure Code and sections 54 and 55 of the Penal Code is that the government, in accordance with the provisions of these two laws, may waive or reduce any sentence in full or in part or may suspend effectiveness of the sentence.

The death penalty is the highest of the five penalties mentioned in our existing Penal Code. Although there is provision for remission, reduction or suspension of the death penalty by the government, it is not an impediment for the President to enforce it under the Criminal Procedure. Apart from that, the power given to the government in the Criminal Procedure Code to waive, reduce or suspend various punishments is in no way considered as any interference in the President’s right to pardon, delay, and waive various types of sentences. The recommendation of the Prime Minister is essential for the President to exercise the power conferred on the President by the Constitution in granting pardon to any punishment and the right conferred on the President in the Criminal Procedure Code to reduce or suspend the death penalty. Therefore, if the President wants to provide any remedy in case of death penalty under the Criminal Procedure Code as per the Constitution, it is not possible to do so by exercising his discretionary power without the recommendation of the Prime Minister or the Government. Although the President is elected with the support of a majority of the ruling party’s MPs, he is the guardian of the country’s constitution and all citizens. Apart from that, he is a symbol of national unity, solidarity and sovereignty. Everyone, especially the ruling party, should strive to maintain the confidence and trust of all the citizens of the country in the President. In a parliamentary system of government, since the recommendation of the Prime Minister or the government is essential for the President to exercise the power to pardon any punishment. There will be no respite from the loss of confidence and trust of the people in the class.

In the past, presidential and parliamentary systems of government have used the office of the President to unexpectedly pardon heinous offenders for political reasons. And so it is considered justifiable for the government to apply any kind of pardon and reduction or suspension of any kind of punishment because the government has the same power as the President.

In case of pardon of an offender under the Criminal Procedure Code by the President or the Government, it may be granted unconditionally or subject to the conditions accepted by the convicted person and in certain cases subject to the opinion of the court which has awarded the sentence. But when an offender is pardoned by the President under Article 49 of the Constitution, there is no need for any condition or opinion of the court.

There is a difference of opinion among jurists, law teachers, law students and researchers as to whether it is essential for a convicted criminal to plead guilty before seeking pardon to the President under the Constitution or any other form of pardon or remission. One view is that if a convicted criminal of death penalty seeks any pardon to the President, he must plead guilty. The other view is that an apology must be sought while seeking pardon and a confession is not necessary. Those who hold the second opinion point out that there is a precedent of pardon for the offender by the President while his appeal was still pending in the High Court Division. In their opinion, if such an offender pleads guilty during an apology, he has no chance of being appointed to an important position in the state or any position in the government. Since such appointments have not been questioned to date, the second opinion seems justified. Apart from that, Article 49 of the Constitution does not provide anything to give the impression that it is essential to plead guilty in the case of seeking forgiveness or pardon of any punishment.

Mahmudul Hasan is a recent LL.M. graduate of energy and environmental law and Thomas Buergenthal Fellow at The George Washington University Law School, Washington, D.C.

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South Asia

Opposing Hindutava: US conference raises troubling questions

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Controversy over a recent ‘Dismantling Global Hindutava’ conference that targeted a politically charged expression of Hindu nationalism raises questions that go far beyond the anti-Muslim discriminatory policies of Indian Prime Minister Narendra Modi’s government and ruling party.

The conference and responses to it highlight a debilitating deterioration in the past two decades, especially since 9/11, of the standards of civility and etiquette that jeopardize civil, intelligent, and constructive debate and allow expressions of racist, Islamophobic and anti-Semitic attitudes to become mainstream.

Organizers of the conference that was co-sponsored by 53 American universities, including Harvard, Stanford, Princeton, Columbia, Berkeley, University of Chicago, University of Pennsylvania and Rutgers, insisted that they distinguish between Hinduism and Hindutava, Mr. Modi’s notion of Hindu nationalism that enables discrimination against and attacks on India’s 200 million Muslims.

The distinction failed to impress critics who accused the organizers of Hinduphobia. Some critics charged that the framing of the conference demonstrated a pervasiveness of groupthink in academia and an unwillingness to tackle similar phenomena in other major religions, particularly Islam.

The campaign against the conference appeared to have been organized predominantly by organizations in the United States with links to militant right-wing Hindu nationalist groups in India, including some with a history of violence. The conference’s most militant critics threatened violence against conference speakers and their families, prompting some participants to withdraw from the event.

Opponents of political Islam noted that Western academia has not organized a similar conference about the politicization of the faith even though powerful states like the United Arab Emirates, Saudi Arabia, and Egypt have lobbied Western capitals against the Muslim Brotherhood and its Turkish and Qatari supporters with notable successes in France, Austria, Belgium and Britain.

Academia was likely to have been hesitant to tackle political Islam because Islamophobia is far more prevalent than Hinduphobia.

Moreover, perceptions of political Islam, are far more complex and convoluted. Islam is frequently conflated with political expressions and interpretations of the faith run a gamut from supremacist and conservative to more liberal and tolerant. They also lump together groups that adhere and respect the election process and ones that advocate violent jihad.

Scholars and analysts declared an end to political Islam’s heyday with the military coup in Egypt in 2013 that toppled Mohammed Morsi, a Muslim Brother, who was elected president in Egypt’s first and only free and fair poll. Political Islam’s alleged swansong loomed even larger with this year’s setbacks for two of the most moderate Islamist political parties in Tunisia and Morocco as well as hints that Turkey may restrict activities of Islamists operating in exile from Istanbul.

A more fundamental criticism of the framing of the Hindutava conference is its failure to put Hindutava in a broader context.

That context involves the undermining of the social cohesion of societies made up of collections of diverse ethnic and religious communities since Osama bin Laden’s 9/11 attacks on New York and Washington.

The attacks fueled the rise of ultra-nationalism and politicized expressions of religious ultra-conservatism not only in the Hindu world but also in the worlds of other major religions.

These include politicized ultra-conservative Islam, politicized Evangelism and Buddhist nationalism. Right-wing religious nationalism in Israel, unlike Islamism and politicized Evangelism, is shaped by ultra-nationalism rather than religious ultra-conservatism.

The worlds of religious ultra-nationalism and politicized expressions of religious ultra-conservatism are often mutually reinforcing.

Scholar Cynthia Miller-Idriss’s assessment of the impact of Al-Qaeda’s 9/11 attacks on the United States is equally true for India or Europe.

“In the wake of the 9/11 attacks, the rise of violent jihadism reshaped American politics in ways that created fertile ground for right-wing extremism. The attacks were a gift to peddlers of xenophobia, white supremacism, and Christian nationalism: as dark-skinned Muslim foreigners bent on murdering Americans, Al-Qaeda terrorists and their ilk seemed to have stepped out of a far-right fever dream,” Ms. Miller-Idriss said.

“Almost overnight, the United States and European countries abounded with precisely the fears that the far-right had been trying to stoke for decades,” she added.

The comparison of politically charged militant nationalist and ultra-conservative expressions of diverse religions takes on added significance in a world that has seen the emergence of civilizationalist leaders.

Scholar Sumantra Bose attributes the rise of religious nationalism in non-Western states like Turkey and India to the fact that they never adopted the Western principle of separation of state and church.

Instead, they based their secularism on the principle of state intervention and regulation of the religious sphere. As a result, the rejection of secularism in Turkey and India fits a global trend that conflates a dominant religious identity with national identity.

Sarah Kamali, the author of a recently published book that compares militant white nationalists to militant Islamists in the United States, notes similar patterns while drawing parallels between far-right xenophobes and militant Islamists.

Militant Islamists’ “sense of victimhood […] is similar to that of their White nationalist counterparts in that [it] is constructed and exploited to justify their violence… Both mutually – and exclusively – target America for the purpose of claiming the nation as theirs and theirs alone, either as a White ethno-state or as part of a global caliphate,” Ms. Kamali writes.

Similarly, the Taliban defeat of a superpower energized militant Islamists, as well as proponents of Hindutava, with Islamophobic narratives spun by Mr. Modi’s followers gaining new fodder with the assertion that India was being encircled by Muslim states hosting religious extremists.

Modi is essentially helping the recruitment of…jihadist groups by taking such a hard, repressive line against the Islamic community in India, who are now being forced to see themselves being repressed,” said Douglas London, the CIA’s counter-terrorism chief for South and South-West Asia until 2019.

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Panjshir – the last stronghold of democracy in Afghanistan

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The Taliban’s rapid advance in Afghanistan has briefly stalled only in the face of strong resistance mounted by the people of the country’s recalcitrant mountainous province of Panjshir. Whoever controls the region’s passes controls the routes leading to China and Tajikistan, but to seize this mountain valley and, most importantly, to keep it permanently under control has always been a problem for all invaders. Eager to let the international community see for the first time in 40 years a united Afghanistan as a sign of their final victory, the radical Islamists were prepared to make any sacrifices, including filling the approaches to the Panjshir Valley up with dead bodies. Moreover, the Taliban’s longtime ally Pakistan, which, regardless of its status of an ally of the United States, has provided them with direct military support. In fact, Islamabad admitted its less than successful role when it proposed signing a truce to find and take out the bodies of its special Ops forces who had died during the attack on the valley. However, drones flown by Pakistani operators, professional commandos (possibly once trained by the Americans), air support and other pleasant gifts from the allies eventually bore fruit letting the Taliban be photographed in front of the mausoleum of Ahmad Shah Massoud Sr., the famous “Lion of Panjshir,” who controlled the valley from 1996 to 2001. The Islamists also took control of the province’s central city of Bazarak.

Having deprived the province much of its Internet access, the radicals, who control most of the Afghan territory, found it easier to wage an information war. Their claims of victories were now more difficult to contest, even though information about their retreat did reach the outside world. Reflective of the heavy losses suffered for the first time by the Taliban and their allies – the Haqqani Network and other remnants of al-Qaeda, as well as by the regular Pakistani army is the brief truce arranged by Islamabad. Looks like the mountain passes leading to Panjshir were literally filled up with corpses…

As for Massoud Jr., the young lion of Panjshir, and his supporters, they retreated to the mountains. In fact, they had nowhere to fall back to. The problem of Afghanistan is its ethnic diversity. Thus, the country is home to 23 percent of ethnic Tajiks, most of whom live in the Panjshir Valley. However, the Taliban rely mainly on the Pashtuns, who account for over 50 percent of the country’s population. As for the new masters of Afghanistan, they are ready to carry out ethnic cleansings and even commit outright genocide in order to bring the valley into submission. To make this happen they are going to resettle there their fellow Pashtun tribesmen. Local men aged between 12 and 50 are already being taken away and, according to the National Resistance Front, no one has seen them again. However, due to the information blockade, the Taliban will not hesitate to refute such facts. One thing is clear: Massoud’s Tajik fighters and the government troops that joined them are fighting for their lives, and there will be no honorable surrender!

The main question now is whether the young lion of Panjshir will receive the same support as his father once did, or will find himself without ammunition and food. After all, the Taliban leaders have reached certain agreements with the United States. Suffice it to mention the numerous remarks made, among others, by President Biden himself about the Taliban now being different from what they were 20 years ago.

But no, the Taliban`s remain the same – they have only hired new PR people. Meanwhile, hating to admit their defeat, Brussels and Washington will have to engage in a dialogue with those who are responsible for the tragedy of September 11, 2001, and for the numerous terrorist attacks in Europe. The Taliban are pretending to make minor cosmetic concessions. Minor indeed, since they are still depriving women of the opportunity to work and study, destroying higher and secondary education and brutally clamping down on people who simply do not want to live according to religious norms.

The United States is actually helping the “new-look” Taliban. Their potential opponents, including the famous Marshal Dostum, an ethnic Uzbek, left the country under various guarantees, and Washington is trying to keep them from any further participation in the conflict. Democratic politicians naively believe that by creating an Islamic state and ending the protracted civil war in Afghanistan the Taliban will ensure stability in the region and will not move any further. Uzbekistan and Tajikistan do not think so and are strengthening their borders and preparing to protect their Afghan compatriots, because they know full well that the Taliban`s are not a national political party; they are a radical Islamist ideology.

It knows no borders and spreads like a cancerous tumor, destroying all pockets of Western culture. It can only be stopped by force. However, the two decades of US military presence in Afghanistan showed that Washington, which quickly took control of the country in 2001, simply had no strategy to keep it. The Afghans were given nothing that would appear to them more attractive than the ideas of radical Islam. As a result, the few Afghans who embrace European values are fleeing the country, and those who, like Massoud Jr., decided to fight for their freedom, now risk being left to face their enemy all by themselves.

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Misjudgements in India’s Afghan policy

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India’s Afghan policy has always been obsessed with the desire to deny Pakistan the “strategic depth” that Pakistan, according to India’s perception, yearns. If India had a pragmatic policy, it would not have found itself whimpering and whining like a rueful baby over spilt milk.

India supported the invasion of Afghanistan by both the former Soviet Union and the USA, both losers. President Trump mocked Modi for having built a library for the Afghan people. Trump expected India to contribute foot soldiers, and by corollary, body packs to the Afghan crisis. India played all the tricks up its sleeves to convince the USA to make India a party to the US-Taliban talks. But the USA ditched not only Modi but also Ashraf Ghani to sign the Doha peace deal with the Taliban.

India’s external affairs minister still calls the Taliban government “a dispensation”. Interestingly, the USA has reluctantly accepted that the Taliban government is a de facto government.

Humanitarian crisis

The United Nations’ Development Programme has portrayed a bleak situation in Afghanistan. Afghanistan is faced with multifarious challenges. These include prolonged drought and the effects of the COVID-19 pandemic, upheaval caused by the current political transition: frozen foreign reserves, and rising poverty.

About 47 per cent of its people live below the dollar-a-day poverty line. If the poverty line is pushed to $2 a day, 90 per cent of Afghans would be poor. About 55 per cent of Afghans are illiterate.

Ninety seven percent of the population is at risk of sinking below the poverty line, As such, Afghanistan teeters on the brink of universal poverty. Half of the population is already in need of humanitarian support. The UNDP has proposed to access the most vulnerable nine million people by focusing on essential services, local livelihoods, basic income and small infrastructure.

Currently, the gross national product of Afghanistan is around $190 billion, just a little more than the $160 billion economy of Dhaka city. The country’s legal exports of goods and services every year account for $1 billion. It imports$6 billion worth of goods and services every year.

About 80 per cent of world production of opium comes from Afghanistan. Every year, Afghanistan produces nearly 10,000 tons of opium and the revenue generated from it amounts to $7 billion approximately. About 87 per cent of the income of opium producing farmers comes exclusively from this single product. The illicit opium export by Afghanistan is worth $2 billion every year. The role of opium is significant.

About 80 per cent of public expenditure in this country is funded by grants. Since 2002, the World Bank has provided Afghanistan with a total of $5.3 billion as development and emergency relief assistance. The IMF earmarked for Afghanistan $400 million in Special Drawing Rights (SDR) for combating the Covid-19 pandemic in the country.

The United States has frozen about $10 billion worth of Afghan assets held at various banks in Afghanistan. The International Monetary Fund (IMF) has withdrawn the $400 million worth of SDRs allocated earlier to Afghanistan for addressing the Covid-19 crisis. The World Bank has not said anything as of yet, but it may also put restrictions on its funding to Afghanistan.

India’s lip service to Afghanistan

India provided around $3 billion in aid to fallen U.S.-backed Afghan government.  It trained the Afghan army and police. But now it is not willing to pay or pledge a penny to the Taliban government. Look at the following Times of India report:

“India did not pledge any money to the Taliban ruled Afghanistan probably for the first time in 20 years. That it has not done so as Jaishanker declared … (At UN, India offers support to Afghanistan but does not pledge money. The Times of India September 14, 2021).The Hindu, September 11, 2021

India’s tirade against Afghanistan

Indian policymakers and experts say they see no guarantees that Afghanistan won’t become a haven for militants. “Afghanistan may be poised to become a bottomless hole for all shades of radical, extremist and jihadi outfits somewhat similar to Iraq and Syria, only closer to India,” said Gautam Mukhopadhaya, who was India’s ambassador in Kabul between 2010 to 2013.  He added that the Taliban victory could have an “inspirational effect” not only for Kashmir’s rebels but wherever religiously-driven groups operate in the broader region… Lt. Gen Deependra Singh Hooda, former military commander for northern India between 2014-2016, said militant groups based across the border in Pakistan would “certainly try and push men” into Kashmir, following the Taliban victory in Afghanistan  (With Taliban’s rise, India sees renewed threat in Kashmir, Star Tribune September 14, 2021). “Meanwhile, Rajnath Singh conveyed to Australian Defence Minister Peter Dutton that the rise of the Taliban raises serious security concerns for India and the region. U.N. Secretary-General Antonio Guterres has appealed for an injection of cash into Afghanistan to avoid an economic meltdown that would spark a “catastrophic” situation for the Afghan people and be a “gift for terrorist groups.”). Afghan economic meltdown would be ‘gift for terrorists,’ says U.N. chief” (The Hindu, September 11, 2021)

 India’s former envoy to Kabul, Ambassador Gautam Mukhopadhyay is skeptical of the conciliatory statements by the taliban government. He advises: “We should welcome recent statements by Stanekzai and Anas Haqqani that suggest some independence from the ISI. But we should also ask some hard questions and judge them by their actions and words, and not let down our guard, both with regard to our multiple security concerns such as whether they can protect us from the Ias and ISI, sever ties with other terror groups, especially those supported by the ISI against India, deny Pakistan strategic depth, and preserve and build on our historic P2P and trade ties; and a genuinely inclusive govt in Afghanistan that accommodates the majority of Afghans who want the rights and freedoms enshrined in the 2004 Afghan Constitution or at least acceptable to the Afghan people.” (Taliban move to form govt, Naya Afghanistan brings new challenge for India, September 2, 2021).

Concluding remarks

India wants a “central role’ to be given to the UN in Afghanistan. India’s mumbo jumbo implies that Afghanistan should be made a UN protectorate. Indian media is never tired of calling the Afghan government a bunch of terrorists. They have even launched video games about it.

India needs to rethink how it can mend fences with Afghanistan that it regards a hothouse of terrorists.

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