Daily Times

In the wake of the Peshawar massacre in 2014, Pakistan lifted a moratorium on execution after 8 years. Up until today, 472 people have been sent to the gallows including those who were convicted of a single murder and ordinary criminal offences. The government in 2014 reinstated the death sentence with the intent of combating terrorism. However, those sent to the gallows were neither terrorists nor convicted of terrorism related activities. Of 472 only 9 percent were convicted of terrorism related activities. As Pakistan reinstates the death sentence another issue has arisen. The issue is regarding the President’s power under Article 45 of the Constitution to grant pardon, and suspend, remit or commute a sentence of death.What is the objective criteria the President adopts for granting pardon or remission to the death row inmate and what criteria does the President consider for rejecting a mercy petition of a death row inmate?

At the very outset, it is crucial to mention here that once a convict has been awarded the death sentence by the Supreme Court and his review petition has also been dismissed, anybody – including a foreign national – can send a mercy petition with regard to that person to the President’s Office under Article 45. A mercy plea can also be sent to the Governor, who then forwards it to the President or Ministry of Interior for further action.

Some legal jurists say that the President can theoretically exercise his power without seeking consultation of the Cabinet or the Prime Minister when deciding a clemency plea. A different school of jurists say that the power of the President like his other powers is expected to be exercised on the advice of the Cabinet.

Moreover, a reading of Article 45 along with other stipulations of the Constitution offers that he can decide a mercy petition on the basis of a self-created criteria and that criteria of deciding a mercy petition varies from case to case. It also appears that while making a decision regarding a mercy petition, the President would also consider the prevailing trend of the government. If the incumbent government wants the death row inmates to be executed the President will be influenced by that while making a decision regarding the mercy petition. In a nutshell, it can be concluded that while making decision regarding a mercy petition, the President doesn’t consider any objective criteria and there is no set rule for deciding a mercy petition.

Furthermore, the President has a Constitutional duty to make a decision about a mercy petition within a reasonable time. Failing to decide a mercy petition(s) within a reasonable time period – say for a number of years -gives the inmate a right to seek commutation to life. Article 45 of Constitution of Pakistan and Article 72 of the Indian Constitution stipulate no time limit of deciding on a mercy petition. On this account, the Indian Supreme Court laid down a judgement stating that delays in deciding mercy petitions of condemned prisoners can be reduced to life imprisonment on the grounds of delay on the part of the President in deciding the mercy petition. Furthermore, the right to seek mercy is a constitutional right of a convict and it is not at the whim or discretion of the executive.

What is the objective criteria the President adopts for granting pardon or remission to the death row inmate and what criteria does the President consider for rejecting a mercy petition of a death row inmate?

This wisdom was executed by the Indian Supreme Court in the Devinder Singh Bhullar case where his clemency plea remained undecided for ten years. The inmate approached the Indian Supreme Court and argued that an inordinate delay in deciding a mercy petition was unfair and unconstitutional therefore his death sentence should be commuted to life imprisonment.

There is no precise and exact data available on record of pendency of clemency pleas in the office of the President. The President of Pakistan by virtue of Article 45 of the Constitution is duty bound to decide all pending mercy petitions within a reasonable time in order to fulfil his constitutional duty. It is also of paramount importance that the authorities in charge of dealing with mercy petitions must provide some public objective criteria relating to deciding of mercy petitions. Here, an example can be quoted of Muhammad Iqbal, who was a juvenile at the time of directive of an offence and he has been suffering in jail for 18 years. His first mercy petition was dismissed by the President of Pakistan a couple of months ago and his second mercy petition is pending a decision in the President’s office. Another example is of Kaniza Bibi whose first mercy petition was dismissed by the President and she has been in jail since 1987.

A number of other examples can be quoted but the question remains unaddressed and unanswered regarding how the President decides between life and death. The President of Pakistan and authorities in charge of dealing with mercy petitions must put together a concrete objective criterion for dealing with mercy petitions and that criteria must be made public as well. Article 45 of the Constitution should not be exercised by the President without laying down a concrete and effective criteria for its application.

The writer is an attorney based in Lahore, he can be reached at greenlaw123@hotmail.com

Published in Daily Times, August 28^th 2017.