M. Jashim Ali Chowdhury
Published in: The Chittagong University Journal of Law
Vol XV (2010; published in May 2012), at pp 23-49
The full text of the article is available at: https://www.researchgate.net/publication/336442944_President's_'Lockean'_Prerogative_of_Mercy_A_Lawful_Lawlessness
The right to pardon a criminal, either by mitigating or by entirely remitting the punishment, is certainly the most slippery of all the rights of the sovereign. By exercising it he can demonstrate the splendor of his majesty and yet thereby wreak injustice to a high degree. With respect to a crime of one subject against another, he absolutely cannot exercise this right, for in such cases exemption from punishment constitutes the greatest injustice toward his subjects.
Immanuel Kant
The Metaphysical Elements of Justice, John Ladd (trans.), Hackett, 2nd ed. 1999, p. 144
A legally sanctioned Alegality
The traditional understanding of Athenian, Roman and British jurists, among others, stands that a polity must make some provisions for the power to pardon, whether for the purpose of remedying injustice, tempering justice with mercy or furthering the interests of the state.[1] Ideally the power of pardon does not exist under a perfect administration of the laws. The admission of the power is a tacitly conceded imperfection of human action in the punishment of offenders. Yet some vilifies the concept for making a mockery of murder victims, undermining democracy, using raw power to cut down the law itself and making law meaningless. Some others reject such a feeling saying that clemency issues from a court of equity exercising a ‘prerogative’ inherent in the sovereign. The essence of a ‘prerogative’ being discretionary, its efficacy is bound up to its very disregard of declared law. Thus Jhon Locke famously defines ‘prerogative’ as:
[The] power to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it, is that which is called Prerogative. For since in some Governments the Law-making Power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to Execution: and because also it is impossible to foresee, and so by laws to provide for, all Accidents and Necessities, that may concern the public; or to make such Laws, as will do no harm, if they are Executed with an inflexible rigor, on all occasions, and upon all Persons, that may come in their way, therefore there is a latitude left to the Executive power, to do many things of choice, which the Laws do not prescribe.[2]
However it is the insinuation of this ‘Lockean prerogative’[3], understood as a residuum of plenary executive power, independent of the specific grants of presidential power in the Constitution that has made most pardon exercises controversial and open to questions. Interestingly Article 49 of the Constitution of Bangladesh itself leaves no residuum regarding prerogative of mercy. Rather it provides a sweeping, unlimited and absolute authority in the President regarding the pardon power:
Moreover Sections 401[9], 402[10] and 402A[11] of the Code of Criminal Procedure 1898 add to the abundancy of the executive authority by empowering the head of the Executive, i.e., the Prime Minister as well in this regard. Predictably this absolute power carries with it an inherent danger of being abused and actually the case is so. In Bangladesh we had to bear the pain of seeing pardon of even death sentence only on political considerations.[12]
The abuse of discretion, however, is not a peculiar one for Bangladesh. More or less the controversial incidents of pardon are frequent in almost all parts of the world. Even in the USA[13], the most sophisticated democracy of the world, a series of high-profile pardons like Andrew Johnson’s sweeping pardons of thousands of former Confederate officials and military personnel after the American civil war, Gerald Ford's post-Watergate pardon of Richard Nixon,[14] Jimmy Carter’s grant of amnesty to Vietnam-era draft evaders, George H.W. Bush’s pardons of 75 people, including six Reagan administration officials accused in connection with the Iran-contra affair and Bill Clinton's eleventh-hour pardons of Marc Rich as well as other individuals[15] raised significant concerns about ways in which pardons might be used to advance personal, partisan or pecuniary interests.
Therefore several scholars have put forth a variety of proposals, such as requiring that pardons be approved by a board; that president gives adequate notice to relevant parties before granting a pardon; that he gives reasons for the pardons; that pardons be issued only after conviction, or that legislature be empowered to disapprove of presidential pardons, etc.
This exercise shall try to explore the ins and outs of each potential alternative and examine their comparative adaptability in different jurisdictions, which may ultimately lead us to one, two or even more concrete ‘what to do’ findings suitable to the genius of the body politic we have got in Bangladesh. Even before that I would like to present a brief historic account of the pardon power as it was and is exercised by the British Crown. Keeping our common law heritage in mind it will help us to understand the breadth of the ‘prerogative’ that actually prevails in the homeland of common law jurisprudence. Inspiration is also heavily drawn from the American jurisprudence on presidential pardon.
Notes --
[1] John Dinan, The Pardon Power and the American State Constitutional Tradition, The Polity, Vol. 35, No. 3 (Apr., 2003), pp. 389-418, Palgrave Macmillan Journals, http://www.jstor.org/stable/3235525, (Accessed on: 25/07/2011), p. 408
[2] Jhon Locke, Two Treatises of Government (Section 160 of the Second Treatise) quoted in Thomas S. Langston and Michael E. Lind, John Locke & the Limits of Presidential Prerogative, The Polity, Vol. 24, No. 1 (Autumn, 1991), Palgrave Macmillan Journals, pp. 49-68 at p. 55; Stable URL: http://www.jstor.org/stable/3234984 (Accessed on: 09/09/2011)
[3] Relying principally on a broad reading of the vesting clause of Article II, Section 1, of the U.S. Constitution, scholars, executive branch legal counsel, certain Supreme Court Justices and several Presidents of USA have claimed an essentially monarchical prerogative power for the American executive. These "presidentialists" frequently assert that the Framers and ratifiers of the U.S. Constitution intended to endow the President with a supposed "Lockean prerogative," understood as a residuum of plenary executive power, independent of the specific grants of presidential power in Article II. According to many presidentialists, Congress cannot restrict or eliminate this residual "executive prerogative" by law.
[4] Complete relinquishment of all sorts of punishments, sentences and legal disqualifications so as to restitute the convicted in the position he held before the conviction.
[5] Temporary suspension of operation of a conviction
[6] Postponement of execution of a sentence
[7] Reduction of amount of sentences without changing its nature, e.g., a longer version imprisonment may be converted into a shorter version imprisonment.
[8] Sanctioning a punishment lighter than the earlier one, e.g., simple imprisonment may be substituted in place of a rigorous imprisonment.
[9] When any person has been sentenced to punishment for an offence, the government may at any time without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit whole or any part of the sentence.
[10] The government may, even without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it, death, transportation, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, and fine.
[11] In case of death sentence, the powers granted in Sections 401, 402 maybe excercised by the President as well.
[12] Professor Dr. Iaj Uddi Ahmed pardoned the death penalty of Mr. Mohidduin Zinto, a worker of Sweden BNP, who was convicted to death in a murder case while others convicted for the same offence were executed. President Zillur Rahman also has pardoned at least twice on considerations which apparently seem to be purely partisan.
[13] The President's power to pardon is stated simply in the US Constitution: The President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment" (Art. II, Sec 2 Cl. I of the Constitution of United States of America)
[14] Pardon was granted by President Gerald Ford to former President Richard Nixon on September 8, 1974, for official misconduct which gave rise to the Watergate Scandal. The majority of Americans showed disapproval and he was narrowly defeated in the Presidential campaign, two years later.
[15]Those receiving pardons included President Clinton’s brother, the son of his education secretary, his former housing secretary, Susan McDougal of Whitewater fame, an old political friend from Georgia, and Marc Rich, whom the government had indicted for the largest tax scam in the nation's history. Marc Rich fled the US to escape a massive tax invasion to Switzerland in 1983. Many present and former high ranking officials in Israel, as well as leaders of the Jewish community in America and Europe, urged the pardon of Rich because of his charitable contribution and services to Israeli causes, the peace process in the Middle East through education and health programs in Gaza and the West Bank. It was suggested that Rich’s wife, Denis made political contributions which comprise more than $1 million to the Democratic Party; $450000 to the Clinton library etc.
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