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.
