Whose fame has been defamed? Mozammel H. Khan

Whose fame has been defamed?

Mozammel H. Khan

Published on February 13, 2007

The age-old saying that truth shall prevail does not prevail in Bangladesh. This has once again been proven in the recent controversy of granting the presidential pardon to a double murder convict, who has been an active leader of the BNP�s youth wing since its inception and currently happens to be a leader of an overseas branch of BNP. 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, �save 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 any one to assume that the pardon was granted according to the advice of the PM.

The crime of double murder was committed in January 25, 1982, when the country, for the second time, was under martial law and the verdict of a martial law court was proclaimed on July 20 of the same year in which all four accused were awarded capital punishment. Two of them 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 the murder case against the accused was initiated out of political acrimony. Although, the pardon was granted in January 13, 2005 the incident caught public and media outcry only when an opposition law maker raised the issue in a meeting of the parliamentary standing committee on law, justice and parliamentary affairs on July 21, 2005. 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 certain extent, absolve the law minister from the subsequent responsibilities and controversies.

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 law 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 the 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 the story behind the pardon that linked the PM and other ministers as well. Upon caught red-handed for obvious deception, the law minister, making a U-turn from his earlier stance, has now aimed his irritations 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 killing by �crossfire�, a flagrant violation of basic human right and rule of law. Law minister�s latest assertion about the martial law court raised more questions than it answers and threw him more into hot water since the honourable minister himself has wilfully and faithfully served both the martial law regimes and played a pivotal role in orchestrating and piloting the 5th and 7th amendments of the constitution through the parliament that legalized the �illegal� acts of the both the extra-constitutional regimes. 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 share his views on this issue, it is only imperative that both the 5th and 7th amendments of the constitution should be declared null and avoid by the parliament and the appropriate retribution should be granted to the kin of the hundreds of victims of the so-called �kangaroo courts�, albeit the government does not have the power to revert any one back to life. The law minister has found a staunch ally, the chairman of the parliamentary standing committee on law and parliamentary affairs, in his newly-indoctrinated jihad to prove the �illegality� of the martial law court. Ironically, this renowned lawyer and current law maker belonging to the ruling coalition, who once as a amicus curiae also provided the lone opinion of descent against the annulment of the indemnity act of the 5th amendment, tooth and nail defended the extra-judicial killing in the name of so-called �crossfire� by RAB in a recently held 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, equivalent to that of Almighty God, should be exercised judiciously and should be offered to one with the highest degree of remorse in addition to known and commendable service to the nation or to the humanity or to one whose survival could potentially contribute immensely to the cause of mankind. Commutation of death penalty of Colonel 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 glorify any of his contribution 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, as pointed out by the law minister that contained no recommendation to grant the mercy was sent from the PM�s office to the President, then the lion share of the onus rests with the Head of the state. In any democracy, where there exists even a little semblance of accountability, citizens have the right to know from the Head of the State himself the ground of the Presidential clemency. On the other hand, in line with the verbal assurance of the PM to �redress the convict from injustice� while he personally met the PM in Geneva, then the PM, the chief executive of an elected government, has a lot of explaining to do to the nation.

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 the 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, defamation suit has been initiated by the law minister raising the natural query of whose fame has been defamed any way?

Dr. Mozammel H. Khan is the Convenor of the Canadian Committee for Human Rights and Democracy in Bangladesh. He writes from Toronto, Canada.