[ALOCHONA] President's Pardoning Fugitive: It's misuse of power

President's Pardoning Fugitive: It's misuse of power

HC observes in judgement of a case during Biswas' tenure; that mercy made ineffective

It would be a misuse of power and an arbitrary decision from the viewpoint of the rule of law if the president pardons a fugitive accused, the High Court observed yesterday.

The court made the observations while delivering a verdict in a case challenging a 1993 presidential clemency granted to one Sarwar Kamal, who was then on the run.Citing examples of various cases, the HC also said it had the jurisdiction to examine whether the president had misused his constitutional power.

Kamal was one of the three convicts in a case filed for beating a man to death. The case was filed with Teknaf Police Station in Cox's Bazar on July 25, 1981.In July 1989, the trial court sentenced each of the three to 10 years' imprisonment.But following an appeal against the verdict, the HC on August 28, 1991 granted Kamal bail till disposal of the appeal petition. Subsequently, he was freed from jail.However, in September 1992 the HC in its judgement on the appeal sentenced Kamal to eight years' imprisonment and ordered him to surrender before the trial court.

In the meantime Kamal's wife submitted a mercy petition in 1991 to the then president Abdur Rahman Biswas, who using his constitutional power pardoned Kamal on April 12, 1993.After receiving the documents of the 1992 High Court judgement on the murder case, the trial court on June 30, 1997 issued an arrest warrant for Kamal.
Not surrendering, Kamal challenged the arrest order in the HC. After a brief hearing, the HC stayed the warrant and issued a rule against it.

Fifteen years after the petition against the warrant, the HC bench of Justice M Enayetur Rahim and Justice Sheikh Md Zakir Hossain dismissed it yesterday.Giving the judgement, the High Court ordered Kamal to surrender before the trial court in Cox's Bazar within six weeks.The court also observed that any presidential order to pardon a fugitive accused is against the rule of law and justice.

It may be mentioned that article 49 of the constitution empowers the president to pardon an accused or a convict."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," the article says.

But the HC yesterday said the then president's decision of granting mercy to Kamal was vitiated and it contradicts the law.

The court also ordered to take departmental action against the officials and employees responsible for not informing the trial court about the 1992 High Court judgement that had upheld the conviction of Kamal and directed him to surrender before the trial court.

Instead of complying with the earlier High Court order, the accused person had obtained clemency from the president through concealing information, the HC said.

When a court issues an arrest warrant for a person or starts the process in this regard, the accused person must surrender before the court if he wants to defend himself, the bench observed.An accused would not have the right to any remedy unless he surrenders before the court, it added.Advocate SM Zafar Sadiq moved the case for Kamal while Assistant Attorney General Gazi Md Mamunur Rashid represented the government.

RECENT CLEMENCY
In 2009, the incumbent President Zillur Rahman granted mercy to Shahadab Akbar, son of deputy leader in parliament Syeda Sajeda Chowdhury, who did not surrender before the court. Shahadab was sentenced to 18 years' imprisonment and fined Tk 1.6 crore in absentia in four cases filed by the Anti-Corruption Commission and the National Board of Revenue during the last caretaker government rule. After securing the mercy, Shahadab in late November that year claimed he had never been a fugitive, and that he was hiding intentionally.

In another case in connection with the killing of Natore Jubo Dal leader Sabbir Ahmed Gama, the president in late 2010 pardoned 20 death row convicts.One of the condemned killers in this case was not pardoned as he was on the run.

In yet another example, Zillur Rahman early this year granted clemency to convicted killer AHM Biplob, son of ruling Awami League leader Abu Taher.Biplob, however, is still in jail in connection with other cases against him.

http://www.thedailystar.net/newDesign/news-details.php?nid=231719

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