By Hina Hafeezullah Ishaq
November 18, 2011
Whilst people like Malik and Haider can be pardoned in a jiffy, others rot in jails waiting for their turn, mostly in deplorable conditions on death row
The Indian Supreme Court is currently hearing petitions filed by the three condemned prisoners who assassinated Rajiv Gandhi and another condemned, named Bhullar, who was convicted for the bomb blasts of 1993. The mercy petitions filed by all four have been rejected by the president after having been kept pending for 11 and eight years, respectively.
Mercy, clemency or pardon was historically considered the ‘royal prerogative’ and was essentially a discretionary power of the ruling monarch. In the current world scenario, this power has devolved upon the presidents or governor-generals in most countries and in some it is an absolute discretion not open to any review by the courts. In England, however, the monarch can now only exercise it on the advice of the government. The theory of pardon is based on the foundation of public good, equity and morality; it supposes that the convict has seen the error of his ways, has reformed himself and that nothing will be gained by his further imprisonment.
In Pakistan, the constitution empowers the president “to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”, but in accordance with the advice of the prime minister or the cabinet. Black’s law dictionary defines ‘pardon’ as an executive action that mitigates or sets aside the punishment for a crime. ‘Reprieve’ on the other hand is a temporary relief from or postponement of execution of criminal punishment or sentence.
The intention of the legislature, by conferring the power to pardon on the ruling heads of state, is to provide relief from a serious mistake, undue harshness or from a miscarriage of justice. It is a means of infusing mercy into the justice system. Pardon is also granted as a grace in some cases or in celebration of certain events.
The honourable Supreme Court (SC) has held that “the president of Pakistan had no such power to commute the death sentence awarded in matters of the Hudood, Qisas and Diyat Ordinance. In this view of the matter, the power of pardon in such cases only vests with the heirs of the deceased. However, the cases will be on a different footing if a person has been punished by way of tazir as, in such cases, the head of state has the power to pardon the offender and that too in public interest.”
Last year, Pakistan Interior Minister Rehman Malik and Sajjad Haider, an FIA officer who had been convicted of corruption in 2004, were pardoned by the president within hours of the Lahore High Court (LHC) dismissing their petitions challenging the conviction. Before that a remission was announced by the president in the jail term of all prisoners, allegedly, to get Ahmed Riaz Sheikh, a former officer of the FIA who had been convicted and sent to jail, to walk out within minutes. Then there is also the controversy regarding Mian Nawaz Sharif’s alleged pardon or reprieve, which enabled him to leave Pakistan more than a decade ago. Dr Abdul Qadeer Khan, our national hero, was also pardoned by Musharraf but, in that instance, the action was hailed by the people of Pakistan.
Pakistan is not the only country to bestow preferential presidential pardons; Bill Clinton pardoned his own brother, Roger Clinton, in 2001 after he had spent a year in prison for cocaine possession, thereby removing his conviction from criminal records.
The SC of India has, with regards to the power to pardon, held, “it can no longer be said that prerogative power is ipso facto (by that very fact) immune from judicial review. An undue exercise of this power is to be deplored. Considerations of religion, caste or political loyalty are irrelevant and fraught with discrimination. These are prohibited grounds. Rule of law is the basis for evaluation of all decisions. Thus, the president and the governors of the state can grant pardon or reprieves based on the rule of law and not any other considerations.”
The discretionary power of pardon cannot and should not be exercised arbitrarily, in a mala fide way or to bestow favours on a few near and dear ones; it is a trust that has been conferred by the public and has to be, at all costs, discharged in a transparent manner. There is no data available as to how many mercy petitions are pending with the president of Pakistan and how many have been disposed of and on what grounds. The people of Pakistan have a right to know how their trust is discharged. Pardons were a matter of public record until 1934 in the US and the Office of the Pardon Attorney was created in 1981. Since then all records of pardon are again public.
People like Bhullar, allegedly a Khalistan Liberation Force terrorist, who masterminded a bomb attack that killed nine people, and the assassins of Rajiv Gandhi, belonging to the Liberation Tigers of Tamil Eelam (LTTE), are arguing before the Indian SC that, due to the long length of time taken to decide their mercy petitions, they are entitled to get their death penalties commuted to life imprisonment. The Indian government has shamefully and pathetically taken the stand that the long delay actually gave a lease of life to the prisoners, as they were not executed!
I assume there are many accused like Bhullar in our own prisons whose appeals for clemency have been pending for ages. Along with them are probably others who are the result of a miscarriage of justice. Whilst people like Malik and Haider can be pardoned in a jiffy, others rot in jails waiting for their turn, mostly in deplorable conditions on death row.
Mercy is a divine attribute: “Your Lord hath inscribed for Himself (the rule of) mercy: verily, if any of you did evil in ignorance, and thereafter repented and amend (his conduct), lo! He is Oft-Forgiving, Most Merciful” (Quran, 6:54). As Muslims, and more so as human beings, compassion and mercy are traits that ought to be practiced often but with it should, in appropriate cases, come the element of justice; the prerogative to issue a pardon should be clothed in mercy and justice and exercised in a non-discriminatory manner. “O you, who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents and your relatives, or whether it is against the rich or the poor” (Quran, 4:135).
The SC of India rose to the challenge by opening pardons to judicial scrutiny, if extended to “privileged class deviants” arbitrarily and with mala fide intentions, in order to protect the interests of the people. The people of Pakistan have a right to expect our apex court to scrutinise all pardons granted, being in the nature of a public trust, through an exercise of judicial review. The people of Pakistan also expect transparency in the manner pardons are granted and it, being a matter of public importance, should have access to the records of such discretionary powers exercised by the head of the state, whoever he may be, regardless of political affiliations, falling within the purview of the fundamental right to information granted by the constitution.
It is said ‘to err is human, to forgive divine’, but to forgive acts done with explicit intentions without any remorse to harm others is hardly an attribute that personifies divinity. Thomas Paine stated in his pamphlet Common Sense (1776): “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.”
In Pakistan, the people in power are all kings and the law is subservient to their whims and wishes, but “pardon me, sire, I think the people of Pakistan have, almost, had enough!”
The writer is an advocate of the high court
Source: The Daily Times, Pakistan
The author has captured the intellectual arrogance and myopia of Pakistani elite/ruling class in her concluding remark: "the people in power are all kings and the law is subservient to their whims."
The bitter truth is, as Hanafites, the Pakistani elite/rulers can lawfully privilege their opinion over God's word - the Qur'an, by applying the ruling that ““Any Qur’anic verse which contradicts the opinions of ‘our masters’ will be construed as having been abrogated, or the rule of preference will be applied thereto” [Ahmad Hussain, Doctrine of ijma in Islam, New Delhi, 1992, p.16]..
The Qur’an’s cardinal verses on Qisas, 2:178 and 5:45, both from the concluding legislative phase offer a forgiveness clause for those accused of homicide. Its two only verses on hudud punishment, 5:33 and 5:38 are each followed by a forgiveness verse (5:34, 5:39). Hence the Qur’anic message does not prevent the exercise of pardon even in hudud punishments. Pakistan jurists must understand that the Classical Shria law is not a word of God, and therefore can be replaced with a modern law that can draw on common law statutes without transgressing the broader paradigms of the Qur’an. You can see this comprehensive piece of ijtihad: http://www.newageislam.com/NewAgeIslamIslamicShariaLaws_1.aspx?ArticleID=5714