The dubious pardon

Daily: The News
Date: 28.05.10

Article 45 of the Constitution is the latest moot point to take rounds in the TV talk shows of
Pakistan. The article says that the President has power to grant pardon, reprieve and
respite, and to remit, suspend or commute any sentence passed by any court, tribunal or
other authority.

Where is the problem? Perhaps, in Rehman Malik, the Minister for Interior, who was granted
pardon by the President Asif Ali Zardari hours after the Lahore High Court upheld Malik’s
sentence to three years imprisonment for being an absconder. Malik was on bail.

The ensuing furore was less on invocation of the article and more on the intent to invoke
the article: instead of using the instrument of discretion to grant pardon in a special case
where there is available no other remedy, the President Zardari resorted to employ his
constitutional discretion to save the skin of his friend to whom several legal remedies were
available. Secondly, by so doing, the President Zardari set another example of nepotism: a
constitutional power that should be used in larger public interest was used for a personal
friend. Nevertheless, it is still to determine who was at fault: the article, the minister, the
president or the intent. Someone said: all of them.

Now the question is why there is widespread abhorrence against the President who was
duly elected by an overwhelming majority of the legislators. According to the anti-pardon
school of thought, the type of democracy being practised currently in Pakistan is menaced
with a kind of obsolescence called the NRO: the document which hastened birth of the
present system holds potential to crumble the system prematurely. Moreover, were there a
genuine opposition, the system (or the government) would have fallen by now. That may be
true but the point is the NRO beneficiaries were known to all and sundry then why an NRO
beneficiary was allowed to get elected as the President of Pakistan? By symptoms, it seems
that Nawaz Sharif (and the PML-N which has by policy confined itself to be a friendly
opposition) owns that mistake.

The camaraderie between the leaders of the two main political parties may not only owing
to the pains shared by them in exile but also because of the presence of a common enemy
(General Pervaiz Musharraf) around – now this is his turn to be in a self-imposed exile –
who is waiting in the wings to reassert his political worth. The latter may be the premonition
which might have compelled the Prime Minister Yusuf Raza Gillani to make pre-emptory
peace overtures with the judiciary and reaffirm cooperation of the government with it. Gillani
also took Nawaz Sharif into confidence. That is why it seems that there are two wings in the
PPP-led government. One is hawk and the other is dove. The hawkish group is all out to
assert what it deems fit to avow while the dove group yearns for reconciliation. Where
Babar Awan belongs to the former group, Gillani is associated with the latter group.

The anti-pardon school of thought also considers that granting pardon was tantamount to
surrogate the court as Malik had not reached the end of the legal alleyway to plead for
presidential clemency. The question was why Malik feared the Supreme Court, the next
step of remedy? One of the answers may be that the act of granting pardon was a
reflection of mistrust grown between the government (the legislature and the executive) and
the judiciary. The government is not leaving any space for the judiciary to pounce on it
under any pretext. That fear might have refrained Malik from appearing before the
Supreme Court sans the shield of pardon. Safety-first might be the principle Malik opted to
follow – or was advised to pursue earnestly.

The anti-pardon school of thought also asserts that pardon granted by the President was in
recognition of the services of Malik he rendered to the leadership of the PPP in the past.
That was how the pardon was a gift of a friend for a friend and a tantalizing reminder to
those (in the PPP ranks) who disagree with the President. Further, the pardon is not just
recognition of the past efforts of Malik but an investment in the future, if one believes in the
mutability of fortune: lest the past might visit the future. Perhaps, the leadership of both the
PPP and the PML-N has now a collective belief in that eventuality.

It seems that the whole system is vacillating between two issues: presidential immunity and
presidential pardon. People have started raising questions on probity of the matters and
decisions. In other words, not the Constitution but the public sense of probity is militating
against the success of presidential immunity and presidential pardon. That trend reflects
ominous for the PPP leadership – and is not a matter of glory. The question is why the
malpractice of corruption should be available for the influential and powerful class of
society?

Retrospectively, it seems that the effort to become the President was less to serve the
country and more to serve oneself. Only has this point given birth to a wrong precedent. So
a consensus is building that there should be attached more prerequisites to the presidential
candidature than are existing now.

The government seems oblivious of the fact that it is difficult for the Supreme Court to
budge from its anti-corruption stance. Hence, the confrontation is the logical sequel if the
PPP hawks keep on appearing resolute and presenting a monolithic front in favour of both
the NRO and the Swiss court cases. The government needs to practise probity to set the
future course right. It is better late than never.

Back to columns in 2010