Fame and defamation

The pardon was granted by the President in accordance with Article 49 of the Constitution (Prerogative of Mercy) which says: "The President shall have power to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority."

However, as outlined in Article 48(3) of the constitution: "[S]ave that of appointing the Prime Minister (PM) and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister." This clause would naturally lead one to assume that the pardon was granted in accordance with the advice of the PM.

The crime at issue was committed on January 25, 1982, when the country, for the second time, was under martial law, and the verdict of a martial law court, in which all four accused were awarded capital punishment, was proclaimed on July 20 of the same year. Two of the guilty were executed while the other two, including the convict in question, were absconding. None of the two victims had any direct political links, and as such the double killing probably was not a political motivated one, nor was the murder case against the accused initiated out of political acrimony.

Although, the pardon was granted on January 13, 2005, the incident caught the public eye and created media outcry only when an opposition lawmaker raised the issue in a meeting of the parliamentary standing committee on law, justice and parliamentary affairs on July 21.

In response to the accusation of impropriety of the Presidential pardon, the Law Minister in turn accused the Home Ministry by disclosing, "When they sent us the summary, asking whether the President can grant amnesty, we just replied that the President has indeed the power to do it, but it rests entirely on him whether to pardon one or not. We did not make any comment for or against the amnesty." If the matter had ended there, it would, to a certain extent, absolve the Law Minister from the subsequent controversy.

In response to the accusation made by the secretary to the Supreme Court Bar Association (SCBA) that the Law Minister had a direct hand in the arrangement and the process of managing the Presidential pardon, the honourable minister not only denied his acquaintance with the convict, but personally went to the court to initiate a defamation suit against the secretary of SCBA.

The court in turn went out of its traditional practice by issuing an immediate order of warrant of arrest against the Secretary of SCBA. The Home Ministry was very swift to dispatch the police force which raided the house of the accused, not once, but twice on the same night. In the following morning, after receiving bail from the High Court, the secretary to the SCBA opened the Pandora's Box, publishing the pictures of the convict, not only with the Law Minister, but with the Finance Minister as well, and also the story behind the pardon that linked the PM and other ministers.

Upon being caught red-handed for obvious deception, the Law Minister, making a U-turn from his earlier stance, has now aimed his ire at the martial law courts, which in his own words were "illegal" and "kangaroo courts." He defended his support for the pardon as an act of "upholding human rights and democracy" -- a strange proposition from a strong propitiator of the "crossfire" killings.

The Law Minister's latest assertion about the martial law court raised more questions than answers and threw him into more hot water, since the honourable minister himself faithfully served both the martial law regimes and played a pivotal role in orchestrating the 5th and 7th amendments to the constitution that legalised the "illegal" acts of the both the extra-constitutional regimes, and piloting the amendments through parliament.

His utterance has also shaken the legal foundation of both the political parties that grew out of the "illegal" martial laws of which he was an active propitiator. If the leaders of the political party that he currently belongs to share his views on this issue, it is imperative that both the 5th and 7th amendments to the constitution should be declared null and void by the parliament and appropriate retribution should be granted to the kin of the hundreds of victims of the so-called "kangaroo courts."

The law minister has found a staunch ally in his new-found jihad to prove the "illegality" of martial law courts, the chairman of the parliamentary standing committee on law and parliamentary affairs. Ironically, this renowned lawyer and current lawmaker belonging to the ruling coalition, who once as an amicus curiae also provided the lone opinion of dissent against the annulment of the indemnity act of the 5th amendment, recently defended tooth and nail extra-judicial killing in the name of "crossfire" by Rab at a human right conference in London.

Article 49 of the constitution that empowers the President to grant "mercy" does not explain the situations under which the President may exercise his prerogative power. It was imperative that this power should be exercised judiciously and should be offered to one with the highest degree of remorse in addition to service to the nation or to humanity or to one whose survival could potentially contribute immensely to the cause of mankind. The commutation of death penalty of Col. Taher, a wounded and decorated hero of our war of national liberation, handed down by a martial law court could have been an ideal case to follow the letter and the spirit of the constitutional prerogative of mercy.

Did the honourable President meet that implied expectation of the nation in granting the pardon? The convict in his mercy petition did not mention any of his contributions to the nation or mankind, rather, in favour of his clemency, he very candidly pointed out his "devotion to Shaheed President Ziaur Rahman and his 19 points programs" which incidentally were formulated during the tenure of his martial law regime.

If the same document, that contained no recommendation to grant the mercy, as pointed out by the Law Minister, was sent from the PM's office to the President, then the lion share of the onus rests with the latter. In any democracy, where there exists even a semblance of accountability, citizens have the right to know from the head of state himself the grounds of the Presidential clemency.

On the other hand, given the verbal assurance of the PM to "redress the convict from injustice" when she personally met him in Geneva, then the PM, the chief executive of an elected government, owes the nation an explanation.

In any society where ethics is not an endangered virtue, accountability is the principle cornerstone of democracy, and rule of law triumphs at all time, flip-flops of the government involving Presidential clemency would have induced a chain of resignations, starting with the Law Minister, shaking the very foundation of the government. Quite to the contrary, here the defamation suit has been initiated by the Law Minister, raising the natural query of which particular fame of the honourable minister has been defamed anyway?

Dr. Mozammel H. Khan is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh.