Daily Times

Article 45 of the Constitution of Pakistan bestows upon our President the “power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”. This naturally begs the question as to why such stipulation is needed in the first place. And the blunt answer is that it most certainly is not. After all, if there is one single constitutional provision that ostensibly undermines the separation of powers between the executive and the judiciary — then Article 45 is it; representing as it does a direct assault on the independence of the latter. In short, the concentration of such immense power invested in one individual — and that, too, an office holder unelected by the people — has no place in a modern day constitution.

The reach of this presidential clemency, however, extends only to the sentence awarded and not to the conviction itself. Meaning that the penalty ordered by the court is simply substituted with that proscribed by the President. Yet this power cannot be circumscribed by way of either a subordinate legislative or an executive instrument. Indeed, in invoking Article 45 the President must first act on the advice of the Cabinet or the Prime Minister; in accordance with Article 48 of the Constitution.

In the Nazir Ahmad case of 2010, the Supreme Court dilated upon the function of Article 45, noting: “Every country recognises and has, therefore, provided for this power to be exercised as an act of grace in proper cases.” Yet this is simply not accurate. Not every country recognises salient features of constitutional provisions; including Pakistan. Similarly, not every country vests such power in a head of state not elected by universal suffrage. And even this were the case — it offers no basis for us to enshrine it within our constitutional structure. All of which brings us to the next point: namely, what constitutes the aforementioned “proper cases”?

To be sure, prioritising the public interest in matters of law is as dangerous as introducing the national interest into politics. What happens if the Rangers shot a defenceless youth at point-blank range? Would they invite special treatment for the sake of the public interest?

There is no clear precedent; just the general expectation that this “constitutional power is a public trust and has to be exercised bona fidely, for public good and welfare”. Per Corpus Juris Secundum (Vol. 67-A); “the pardoning power is founded on consideration of the public good, and is to be exercised on the ground of public welfare, which is the legitimate object of all punishment, will be as well promoted by a suspension as by an execution of the sentences.” To be sure, prioritising the public interest in matters of law is as dangerous as introducing the national interest into politics. For what happens when we are confronted by a cold-blooded murderer? Would this individual merit due consideration under Article 45? Or what if the Rangers, say, shot a defenceless youth from point-blank rage? Would they invite special treatment in the public interest even though we are all supposed to be equal before the law?

As Alexander Hamilton, writing in Federalist Paper No.74 argues, “the principal argument for reposing the power of pardoning . . . is this: in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall”. It was in this context that George Washington granted the first high-profile American presidential clemency in the aftermath of the so-called Whiskey Rebellion; which pertaining to protests over the taxing of a domestic product back in 1791.At that time, Washington found it necessary that the government exercise “every degree of moderation and tenderness which the national justice, dignity, and safety may permit”. In a somewhat comparable vein, Abraham Lincoln pardoned all Confederate soldiers except the highest officials. In other words, presidential clemency cannot be invoked to sanction extra-judicial killing. And never must it be employed to protect individual officers of the state who have abused their position.

Similar presidential powers are also enshrined in the s. 55A of the Pakistan Penal Code (PPC) as well as s.402 of the Code of Criminal Procedure (CrPC). Nevertheless, these two statutory provisions were challenged by the Federal Shariat Court (FSC) on the grounds of being un-Islamic; with directions issued to have them amended. The FSC judgement was upheld by the Shariat Apellate Bench of the SC. Consequently, a proviso was added to these two controversial stipulations (of the PPP and the CrPC) leading to the functions of the President being made subject to the consent of the victims or their legal heirs; where applicable. That being said, it is important to note that the FSC’s jurisdiction only extends to examining whether or not any law or custom is repugnant to the Holy Quran as well as Sunnah. Meaning that it has no authority to review constitutional provisions as per Article 203 (B)(c).

We must be mindful that presidential pardons offer no recompense for miscarriages of justice. The answer therefore must lie in strengthening the criminal justice system and existing safeguards. This must include ensuring that the CrPC is enforced on a non-discriminatory basis as well as enhancing the capacity of officers associated with the justice system. For what none of us wants is a return to the era of Louis XIV, whereby one may proclaim: “It is legal because I wish it!”

The writer attended Berkeley and is a Barrister of Lincoln’s Inn

Published in Daily Times, January 24^th 2018.