Judicial review of clemency
Justice Holmes of US Supreme Court was of the view that pardon as of today is not an act of grace but is a constitutional scheme which when granted is the determination of the ultimate authority that the public welfare will be served by inflicting less than what the judgment fixed. Bangladesh Constitution authorizes the President to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority and for such act he shall not be answerable to any court for anything done or omitted by him in the exercise or purported to exercise of the functions of this office (combined reading of Articles 49 and 51). But the right of any person to take proceedings against the Government is not affected by Article 51.
The power of pardon has sometimes been regarded as an unprincipled and unwelcomed intrusion as it leads to an overlap between the functions of judiciary and executive. Still such a provision is found in almost every country's legislation. This nature of the pardoning power has lead to various petitions asking for judicial review of the same. The clemency power of the president should be responsive to these two-folded questions; firstly, is there a conflict between judicial power to pass a punishment authorized by law and the pardoning power? Secondly, does the pardoning power of the executive undermine the judicial decisions? To evaluate the role of judiciary in regulating the clemency power of the President and also to answer to these questions, we have to wait for an alternative directive which would provide for a clear direction determining the limits and scopes of the power of pardon by the president. The guideline should resolve the debate of separation of power vs. independence of judiciary in relation to the prescribed fundamental rights in the Constitution of the People's Republic of Bangladesh.
In India, C.J Pathak in Kehar Singh Case (1989) at 204 remarked, “it is clear from the constitution that like other powers of the president, the power to pardon is also to be exercised on the advice of council of ministers which means the president yet again acts out as a rubber stamp fulfilling a prerogative as under the constitution.” According to Article 48(3) of the constitution of Bangladesh, in exercise of all of his functions, the President shall act in accordance with the advice of the Prime Minister.
However, the power of pardon even if it is being wielded by the highest executive authority needs to be exercised in good faith, with intelligent and informed care and honesty for public welfare. The Indian Supreme Court in G. Krishna Goud Case [(1976) 2 SCR 73] added a note of caution and stated that the Court would intervene where there was “absolute, arbitrary, law-unto-themselves mala fide execution of public power”. Furthermore, the power to grant pardon is coupled with the duty to act fairly and reasonably. All public power, including constitutional power, should never be exercised arbitrarily or mala fide and ordinarily, guidelines for fair and equal execution are guarantors of the valid play of powers. Indian Supreme Court has expressed the need to make rules for the guidance in exercise of pardoning power. From the outset, in Ex Parte Philip Grossman (69 L. Ed. 527), it was held that the systematic abuse of the pardoning power and the arbitrary and irrelevant reasons supporting issuance is nothing new to the system. Isn't the same argument so true in the case of Biplob and all the previous executive pardons in Bangladesh?
The absence of transparency in the clemency process is a serious concern, especially since the executive may be subject to pressure extraneous to the case. It is often the case that reasons for accepting or rejecting a mercy petition is not given. In the case of Padfeild [(1968) 1 All E.R. 694], it was stated that in case the executive gives no reasons for a decision the judiciary is at liberty to come to the conclusion that he had no good reason for reaching that conclusion. Does the oral explanation of our honorable State Minister of Law clarify President's position? If not, then it has reason to be corrected by judicial review. In Kehar Singh, it was held that the area of the President's power under Article 72 (Indian) falls squarely within the judicial domain and can be examined by the court by way of judicial review. However, if the reasons are provided by the president in his order and these are held to be irrelevant, the court could interfere. These parameters for judicial review were reiterated again in Maru Ram [(1981) 1 SCC 107] where the Constitutional Bench further asserted that the Courts would intervene in cases where political vendetta or party favoritism was evident or where capricious and irrelevant criteria like religion, caste and race had affected the decision-making process.
Considering Biplob's case a long unjustified delay in asking pardon, sentence of life imprisonment in several other murder cases and most importantly, the non-exhaustion of judicial remedies, i.e., the death sentence was not appealed before the Appellate Division, give rise to the question for judicial review. Indian Supreme Court admitted in a writ petition in Kuljeet Singh [(1982) 1 SCC 11] challenging the arbitrariness of the clemency powers of the President and expressed need for the president to be presented with relevant facts and made aware of the existing circumstances. In Swarn Singh v. State of UP [(1998) 4 SCC 75], the Governor of Uttar Pradesh remitted the whole of the life sentence of a Member of the Legislative Assembly who had been convicted of the offence of murder within a period of less than two years of his conviction. The Supreme Court found that Governor was not posted with material facts such as the involvement of the accused in 5 other criminal cases, his unsatisfactory conduct in prison and the Governor's previous rejection of his clemency petition in regard to the same case. Hence, the Supreme Court interdicted the order, acknowledging that though it had no power to touch the order passed by the Governor, if such power was applied arbitrarily, mala fide and in absolute disregard of the finer cannons of constitutionalism, such an order cannot get the approval of law. Similar was the case of Satpal v. State of Haryana [AIR 2006 SC 3385] where the Supreme Court quashed the order of the Governor. This judicial trend has been maintained even in the recent case of Epuru Sudhakar [AIR 2006 SC 3385], where the Indian Supreme Court laid clear grounds on which the pardoning power may be challenged.
In the Kehar Singh Case, it was held that the manner of consideration of the petition lies within the discretion of the President, and it is for him to decide how best he can acquaint himself with all the information that is necessary for its proper and effective disposal. It was held that it is open to the President under the Constitution to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that recorded by the Court and in doing so; the President does not amend, modify or supersede the judicial record. The President acts in a wholly different plane from that in which the court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it. This ostensible incongruity is explained by Sutherland J. in United States v. Benz [75 L. Ed. 354] as to render judgment is judicial while to carry out the judgment is executive. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.
There have been numerous instances; including every case of death penalty for which a mercy petition has been submitted, but should the President pardon all? If not, then what should be his view in granting mercy? This article has made an effort to show that satisfaction of presidential clemency is not beyond the ambit of judicial review. In this era of judicial activism, the examples cited above may be an eye-opener for Bangladesh jurisdiction.
The writer is Student of Law, University of Dhaka.