Program: LL.M.

(Master of Laws)
Name: Masudur Rahman Rana
ID: 2042361045

1. Topic:

Legal Mechanism to Control Unrestrained Exercise of the Presidential Prerogative of

Mercy with Special Reference to the Judicial Reviewability in the Constitution of
Bangladesh: A Comparative Legal Analysis

OR

Judicial Reviewability of the Presidential Prerogative of Mercy in the Constitution of

Bangladesh: A Comparative Legal Analysis

2. Research Objectives:

The study has been conducted with a view to identify the legal mechanism to control
unrestrained exercise of the Presidential prerogative of mercy with special reference to the
judicial reviewability in Bangladesh constitution. In addition to that the research objectives are as
follows:

a) To find out the overall situation of prerogative mercy in Bangladesh and international
arenas;
b) To evaluate the existing laws and policies on prerogative mercy;
c) To identify the causes of prerogative mercy and how its abuses;
d) To identify the justification of judicial reviewability in Bangladesh on prerogative mercy;
e) To make recommendation for addressing prerogative mercy issue in Bangladesh.

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3. Research Questions: The research questions of this research are as follows:

a) What are the justification of judicial review process of the presidential prerogative of
mercy in Bangladesh?
b) What are the constitutional role to ensure justice regarding prerogative of
mercy?
c) How legal mechanism can control existing abuses of prerogative mercy provision in
Bangladesh? Or What are the loopholes and solutions regarding unrestrained exercise
of prerogative mercy through laws and policies?

4. Literature Review:

The Presidential prerogative mercy is common almost every country in the world. During the
British rule, the power of pardon was historically vested in the British monarch. The power of
pardon is an important component of executive powers, which allows the President to intervene
and grant pardon. It is the discretionary power of the President. It is considered as the last shelter
of justice.
The power of pardon is reserved to avoid any miscarriage of justice. But this power has been
abused through various ways in Bangladesh. In Bangladesh, court plays very poor role by their
judicial approach towards the problems dealing with prerogative mercy. In Bangladesh there has
been lack of case laws exclusively which deals with the problems of prerogative mercy. Judicial
review process still not established properly in Bangladesh for prerogative mercy provision.
There have been lack of judicial decisions and works on it. Additional avenues to seek a pardon
is not introduced in this country, which exercise by Australia. And the application process of the
discussed area of laws and policies are not proper in Bangladesh. Whereas the developed
countries of the world have already enacted specific laws to control the unrestricted exercise of
the prerogative mercy provision and applied it properly.

This chapter discuses some of those literatures I have studied and reviewed about prerogative
mercy which is relevant to my study. My study has been inspired, outlined and thus helped by a

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number of studies and literatures by prominent scholars who have written extensively on
prerogative mercy.

Mahmudul Islam (2002)1, In Bangladesh, the President exercises this power on the advice of
Prime Minister. The President may exercise the power either before or after conviction and need
not wait for the verdict of the court. And it came from the case decision of Attorney General of
Trinidad and Tobago v. Philli, 1994. Here it’s said that, it may be exercised either before or after
the conviction and need not wait for the verdict of the court.

Md Rabiul Islam (2012)2, Bangladesh Constitution by article 49 has rendered the prerogative of
mercy to the President which implies an exclusive judicial power even after the final decision of
the highest court. The literal meaning of those provisions of Bangladeshi laws provokes to
suggest that the President can use his prerogative of mercy without considering anything due to
the lack of guidelines.
The recommendation to introduce judicial review against prerogative of mercy increased last
decades. This conventional attitude was contended by academic ATH Smith as he wrote, “If its
continuance is to be tolerated at all, the greatest care is necessary to ensure that no abuse is
possible.”3 Clive Lewis in his book4 states, “In principle a failure to consider exercising the
power to grant a pardon should be reviewable. Durga Das Basu (1978)5, the object of conferring
these judicial powers upon the executive is to correct the possible judicial errors, for no human
system of judicial administration can be free from imperfections.

1
Mahmudul Islam: Constitutional Law of Bangladesh (Mullick Brothers, 2nd Edition, 2002) p 324
2
M M Islam: Judicially Reviewing the President‟s Prerogative of Mercy- A Comparative Study (Bangladesh
Research Publications Journal, 2012)
3
ATH Smith: “Prerogative of Mercy, the Power of Pardon and Criminal Justice”, (National Criminal Justice
Reference Service: Public Law, UK, 1983) p 400
4
C Lewis: Judicial remedies in public law, (Sweet & Maxwell, London, 1992) p 21
5
Durga Das Basu: ‘Introduction to the Constitution of India’ (Prentice Hall of India, New Delhi, 1978) p 159

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Mohammed Mamun Al Feruje (2012)6, In the light of literal interpretation of law, the
President’s recent decision of granting mercy to a convicted killer AHM Biplob for the second
time in seven months was fall within legal ambit. Presumably, President has interpreted article
49 of the constitution according to the literal rule of interpretation which cannot stand alone. In
the present-days judiciary and the legal world have adopted purposive approach of legal
interpretation which signifies not only the literal meaning of law but also the actual purpose of
making law. It is supported from Lord Simons7, “the judge is to look to the purpose of the
legislation and then must look at the words and interpret them according to the purpose.”  

J P Rai (2014)8, The power of judicial review provides a kind of check over misuse of the
extraordinary power in the hands of executive organ of the state. The purpose of Articles 72 and
161 of the Indian Constitution is to provide a human touch to the judicial process. If this human
touch is not exercised properly, the very purpose of mercy provisions is defeated. Prerogative
mercy is subject to judicial review9 as held by the Supreme Court of India in the case of Maru
Ram v. Union of India (1980). It was subsequently confirmed by the Supreme Court in case of
Kehar Singh v. State of India (1988). And the Supreme Court also confirmed, clemency is
subject to judicial review and that it cannot be dispensed with as a privilege or act of grace
(Epuru Sudhakar & Anr. v. Govt. of A.P. & ors, 2006).
Article 49 of Bangladesh Constitution confers mercy power on the President. Apart from
constitutional provisions, the government may suspend, remit or commute the sentence of a
person under the Code of Criminal Procedure of 1898. 10 According to the Constitution, 11 the
President is to exercise the prerogative power of mercy in consultation with or in accordance

6
Mohammed Mamun Al Feruje: ‘Prerogative of Mercy: A Safeguard to Miscarriage of Justice’

<https://www.banglanews24.com/english/law/news/bd/19738.details> accessed on 9 August, 2020

7
Ibid
8
J P Rai: ‘Exercise of Pardoning Power in India: Emerging Challenges’ (The NEHU Journal, Vol. XII, 2014) pp 1-
26
9
Ibid, p 1
10
Section 401 & 402 of the Code of Criminal Procedure, 1898 <http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75>
11
The Constitution of Bangladesh, 1972 <http://bdlaws.minlaw.gov.bd/volume-15.html> accessed on August 15,
2020

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with the advice of the Prime Minister through the Ministry of Law and Parliamentary Affairs.
The President cannot act independently in exercising the prerogative power of mercy.
Solomon A M Ekwenze (2014)12, a wrongful acquittal can sometimes involve injustice as
grievous as wrongful conviction. The conviction as a matter of record, survives the pardon.
Pardon expresses forgiveness not innocence. An innocent man cannot be pardoned but to apply
for rescindment which is a total cancellation, not a pardon that leaves the record intact. Because
the President as an Executive does not deal with law, he concerns himself with mistake of facts
while the courts concern itself with mistake of law.

Imo Udofa (2018)13, the grant of pardon in all cases should be rational and aimed at serving
some public policy purpose in order to justify the President’s interference with the judicial
determination of guilt and punishment.

Mohammad Arafat Hossain and Md Sher-E-Alam (2019)14, The history of pardon in

Bangladesh bears testimony to that all the pardons took place considering only political ground
and affiliation. The power of judicial review provides a kind of check over misuse of this
extraordinary power in the hands of executive organ of the State. But here in Bangladesh,
judicial review power is not established in this matter.

Here I have been revisited the previous works on prerogative mercy from different published
academic research works, reports and texts on various books. It is mainly done with an objective
to identify the gaps and loopholes of the previous work to justify the need and suitability of my
proposed work. In the following literature, those writings dealing directly to the issue of
prerogative mercy have been discussed.

12
Solomon A M Ekwenze: ‘Presidential Pardon and Prerogative of Mercy: A necessary National Soothing balm for
Social Justice’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2541929> accessed on 10 August, 2020

13
Imo Udofa: ‘The Abuse of Presidential Power of Pardon and the Need for Restraints’
<http://www.scirp.org/journal/blr> accessed on 10 August, 2020
14
Mohammad Arafat Hossain and Md. Sher-E-Alam: A Legal Analysis of the Presidential Prerogative of Mercy in
Bangladesh (Metropolitan University Journal) p 145

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In the last few days of my study, I have been able to know up to this mark. I will probably learn
more about this topic as the research progresses.
5. Methodology of the Research: This research paper will prepare relying on these:

The study follows the qualitative research methodology. The research will mainly base on
various primary and secondary data. In my study, primary and secondary data will collect from
various sources I have discussed below.
Primary information has been obtained through the Constitution of the Bangladesh and other
existing laws of Bangladesh and some other foreign countries constitution and relevant laws
which is relevant to the research. Different case decisions of various legal system will be discuss.
The secondary data for my research will collect from various sources such as- views and ideas of
the famous writer in books will review in the study. Along with different national and
international organizations information’s will be use in this research. The relevant journal,
newspaper articles, opinions of intellectuals, website and blogs will also visit in this research
study.

6. Importance of the Research:

Bangladesh is now severally being affected by unrestricted exercise of its power. There has been
lack of effective laws, non-application of existing laws, non-application of judicial review
provision, lack of previous works on legal measures how to prevent or control this problem, lack
of effective planning, public awareness, and proper focusing on the issues of prerogative mercy
in our country, it has become a mammoth problem now a days.

The study reveals that, in Bangladesh there have been lack of guidelines for prerogative mercy
that proposed by different writers. After studied many countries prerogative mercy provisions I
found that, to control unrestricted exercise of its power in Bangladesh there have some new
issues which should introduce from foreign nations to ensure check and balance over there.
Adequate research and some alternative solutions might give us some hope and light to solve the
unrestricted exercise of its power. For that reason, I want to add some new ideas and probable
solutions through this research to introduce proper check and balance in this arena.

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7. Chapterization:

Chapter-I: Introductory Chapter

a) Introduction
b) Literature Review
c) Objective of the Research
d) Research Questions
e) Rational/Importance of the Research
f) Scope of the Research
g) Limitation of the Research
h) Methodology of the Research

Chapter-II: Concept and Sources of Prerogative Mercy

a) Meaning and concept of Prerogative Mercy
b) Origin/Legislative Background of Prerogative Mercy
c) Development of Prerogative Mercy
d) Forms of Clemency
e) Justifications for the Prerogative Mercy

Chapter-III: The Power of Pardon in Bangladesh

a) The Pardoning Authority

b) Exercise of Power: When?
c) Effects of Pardon/Impact of Prerogative of Mercy on Law and Statehood

d) Societal attitudes and behavioral patterns to Prerogative of Mercy in Bangladesh

Chapter-IV: Prerogative Mercy in International Sphere

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 a) UK
b) USA
c) India
d) South Africa
e) Pakistan
f) Sri Lanka
g) Russia
h) Japan
i) China
j) Canada
k) International law context: (1) International Covenant on Civil and Political Rights, (2)
Inter-American Commission on Human Rights (IACHR)

Chapter-V: Justification of Judicial Review Process on Prerogative Mercy

a) Legislative Background of Judicial Review

b) Judicial Review in International Arenas on Mercy
c) Judicial Review in Bangladesh on Mercy
d) Judicial Review and Justice

Chapter-VI: The Abuse of the Prerogative Mercy in Bangladesh and International Sphere

a) Instances in Bangladesh by the Presidents of Bangladesh

b) Instances in International Level

Chapter-VII: Legal Instruments to control unrestricted exercise of Prerogative Power in

Bangladesh
a) Constitutional Remedies
b) Judicial Remedies
c) Legislative Remedies

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 d) Administrative Remedies
e) Other Remedies

Chapter-VIII: Case Study

a) In Sub-continental Region
b) Others Countries

Chapter-IX: Findings, Recommendations and Conclusion

a) Major Findings
b) Recommendations
c) Conclusion

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 Bibliography
Books:

• L Sebba: Clemency in Perspective (Lexington: Mass Lexington Books, 1977) pp 225-228

• Mahmudul Islam: Constitutional Law of Bangladesh (Mullick Brothers, 2 nd Edition,
2002) P 324
• M M Islam: Judicially Reviewing the President’s Prerogative of Mercy- A Comparative
Study (Bangladesh Research Publications Journal, 2012) pp 257-266

Encyclopedias:
• ‘Pardon’<https://en.wikipedia.org/wiki/Pardon#:~:text=A%20pardon%20is%20a
%20government,the%20laws%20of%20the%20jurisdiction.> accessed on 18 August,
2020

Journal Articles:
• Md Rabiul Islam: An Elucidation on Prerogative of Mercy to Assess Its Limits in the
Constitution of Bangladesh with a Comparative Study (Jahangirnagar University Journal
of Law, Volume-II, 2014)
• ATH Smith: “Prerogative of Mercy, the Power of Pardon and Criminal Justice”,
(National Criminal Justice Reference Service: Public Law, UK, 1983) p 400
• C Lewis: Judicial remedies in public law, (Sweet & Maxwell, London, 1992) p 21
• Durga Das Basu: ‘Introduction to the Constitution of India’ (Prentice Hall of India, New
Delhi, 1978) p 159
• Mohammad Arafat Hossain and Md. Sher-E-Alam: A Legal Analysis of the Presidential
Prerogative of Mercy in Bangladesh (Metropolitan University Journal) p 145
• Mohammed Mamun Al Feruje: ‘Prerogative of Mercy: A Safeguard to Miscarriage of
Justice’ <https://www.banglanews24.com/english/law/news/bd/19738.details> accessed
on 9 August, 2020

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 • J P Rai: ‘Exercise of Pardoning Power in India: Emerging Challenges’ (The NEHU
Journal, Vol. XII, 2014) pp 1-26
• Solomon A M Ekwenze: ‘Presidential Pardon and Prerogative of Mercy: A necessary
National Soothing balm for Social Justice’ <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2541929> accessed on 10 August, 2020
• Imo Udofa: ‘The Abuse of Presidential Power of Pardon and the Need for Restraints’
<http://www.scirp.org/journal/blr> accessed on 10 August, 2020

Website and Blogs:

• Cambridge Advanced Learner‘s Dictionary (2008)
<https://dictionary.cambridge.org/dictionary/english/prerogative> accessed on 13 August,
2020
• Oxford Advanced Learner’s Dictionary (2005)
<https://www.oxfordlearnersdictionaries.com/definition/english/prerogative> accessed
on 7 August, 2020
• Clemency under different governments in Bangladesh
<http://newagebd.com/newspaper1/archive_details.php?date=2012-02-28&nid=51887>
accessed on 12 August, 2020
• ‘Presidential Pardons: Overview and Selected Legal Issues’
<https://www.everycrsreport.com/reports/R46179.html#_Toc30077281> accessed on 12
August, 2020

Newspaper Articles:
• ‘President's prerogative to mercy’ <https://www.thedailystar.net/news-detail-224134>
accessed on August 12, 2020
• ‘Top terror Joseph freed from jail on presidential clemency’
<https://www.dhakatribune.com/bangladesh/2018/05/30/top-criminal-joseph-freed-from-
jail-on-presidential-clemency> accessed on August 12, 2020
• ‘Decision to release 330 prisoners sentenced to life imprisonment’
<https://www.google.com/search?
q=google+translate&oq=g&aqs=chrome.1.69i60j69i59j69i57j69i59l2j0j69i60l2.1020j0j7
&sourceid=chrome&ie=UTF-8>accessed on 18 August, 2020

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