If convicted, will Nawaz get a presidential pardon?

LAHORE: If Nawaz Sharif is formally convicted in the Panama corruption References, chances of which are bright after his indictment Wednesday, the disqualified former Pakistani Prime Minister's loyalists might be hoping against hope that President Mamnoon Hussain comes to their leader's rescue by exercising his "discretionary powers" to pardon him.All over the world, including Pakistan, it is not unusual for Presidents to ultimately use their powers to grant clemency to people convicted in a wide range of crimes.

Let us first discuss the case of Pakistan in this context.

These "discretionary powers" are vested upon the Pakistani President by Article 45 of the 1973 Constitution.

Article 45 of the 1973 Pakistani Constitution, pertaining to President's power to grant pardon etc, states: "The President shall have power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority."

In May 2010, the then sitting Pakistani President, Asif Zardari, had issued a pardon for his close ally and country's Interior Minister, Rehman Malik, who was convicted of corruption in 2004.

On May 18, 2010, a bench of Lahore High Court had dismissed an appeal by Interior Minister Rehman Malik against his conviction in two corruption references and had restored a three-year imprisonment awarded to him.

He was actually sentenced to a three-year term in absentia by an accountability court and the punishment was upheld by the Lahore High Court.

Presidential spokesman, Farhatullah Baber, was quoted by local media as contending that President Asif Zardari had granted pardon to Rehman Malik under the authority conferred upon him by the Article 45 of the Constitution.  Spokesman had added that thePresident pardoned the sentence on the advice of the Prime Minister Yousaf Raza Gilani.

A May 18, 2010 report of the "BBC" had stated: "The pardon came after the Lahore High Court dismissed Mr Malik's attempt to challenge the conviction. The President used "discretionary powers" which allow him to pardon anyone convicted by a Pakistani court. The stand-off began with the refusal of the President to reinstate Pakistan's Chief Justice Iftikhar Mohammad Chaudhry and other judges, who were sacked in 2007 by former President Pervez Musharraf."

The British media house had added: "Although President Zardari's Pakistan People's Party was at the forefront of the fight to restore the judiciary after nationwide protests, he later backtracked on this promise. It was only after another campaign led by the opposition that President Zardari had reinstated the sacked judges."

It is imperative to note that Rehman Malik was arrested in November 1996 on orders of the then President Farooq Leghari.

But since he was among the October 2007 National Reconciliation Order (NRO) beneficiaries too, he had managed to get three corruption cases quashed.

One of these cases pertained to an FIA raid conducted illegally on his orders at the Lahore residence of two New York-based businessmen Abbas Rizvi and Hashim Rizvi.

The aggrieved party had alleged Malik’s team of taking away gold ornaments and Rs 0.7 million in cash, besides contending that the FIA boss (Malik) had implicated members of the pained family in false visa racket and drug cases.

Malik was also accused of making dirty money in the purchase of vehicles for the FIA.

Remember, the National Reconciliation Order was promulgated on October 5, 2007 by the then President, General Pervez Musharraf.

The NRO had subsequently quashed all outstanding charges against top Pakistani politicians and officials.

These key politicians and officials, who benefitted through the controversial NRO, were accused of corruption, embezzlement, money laundering, murder, and terrorism between January 1, 1986, and October 12, 1999, the time between two states of Martial Law in Pakistan.

The NRO was later declared unconstitutional by the Supreme Court of Pakistan on December 16, 2009, throwing the country into a political crisis.

Earlier in November 2009, the government of Pakistan had released the list of the beneficiaries of NRO on the directives of the then Prime Minister, Yousaf Raza Gilani.

The total list contained names of 8,041 beneficiaries, most of whom were bureaucrats, though a number of politicians had also featured prominently in this list.

This NRO was widely seen as the basis for a power-sharing deal between General Musharraf and former Prime Minister, Benazir Bhutto, who was assassinated in December 2007.

Presidential clemency is an accepted norm in many parts of the world. In India, the President is empowered with the power to pardon under Article 72 of the Indian Constitution.

Article 72 says that the President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.

State Governors in India also hold these powers.

However, in the 2006 Epuru Sudhakar & Anr Versus government of Andhara Paradesh Case, the Indian Supreme Court had held that clemency was subject to judicial review and that it could not be dispensed as a privilege or act of grace.

The Apex Indian court had made these observations while quashing the decision of then Governor of Andhara Paradesh, who had commuted the sentence of a convicted Congress activist. In January 2017, former Indian President, Pranab Mukerjee, had cleared as many as 32 mercy petitions – perhaps the highest number of mercy petitions cleared by any President of India in recent times.

The 32 mercy petitions cleared, 28 were rejected by the President. That's over 87 per cent of the total mercy petitions.

The rejected lot includes the mercy plea of Mohammed Ajmal Kasab – the lone 26/11 Mumbai attacker who was caught and that of Gurmeet Signh convicted in the 1986 for murdering 13 members of a family.

On January 24, 2017, the "Huffington Post" had written: "The Indian Ministry of Home Affairs (MHA) that advises the President on mercy pleas sent its first recommendation on Gurmeet's mercy plea in 2007 when President Kalam was in office. The plea wasn't decided upon by either President Kalam or his successor President Pratibha Patil – the first woman President. President Mukerjee also decided on the mercy pleas of Mohammed Azfal Guru – convicted for the 2001 Parliament attack and that of Dharampal, convicted in 1993 for murdering five people. For Guru too, the MHA sent its recommendations twice. The first recommendation was sent to President Patil in 2011. She didn't decide on the plea."

The famous American media outlet had stated: "President R Venkatraman -who was in office between 1987 and 1992 - rejected as many as 44 mercy petitions, the most by any President of India. President Pratibha Patil accepted as many as 30 mercy pleas. President Patil, it is understood, also asked the Government to change its view in favour of mercy in a number of cases. And, perhaps accepted the highest number of mercy pleas."

In August 2017, US President Donald Trump had exercised his pardon power for the first time, using it to pardon former Arizona Sheriff Joe Arpaio.

The Arizona Sheriff was convicted on July 31 last of misdemeanor contempt of court for intentionally defying a 2011 court order to stop traffic patrols that targeted immigrants. He had been set to be sentenced October 5 this year and faced up to six months in jail.

In December 2016, French President François Hollande had pardoned a woman for murder of husband.

The killer Jacqueline Sauvage had received Presidential pardon and was released from prison in ‘strong message’ to domestic abuse victims.

In January 2016, President Hollande had granted a partial pardon to Sauvage, allowing her to seek parole. But two more courts made up of professional magistrates refused to free her. The President of the main union of French magistrates said Hollande made a "deplorable" decision "to please the public and to respond to a media request.

The French constitution allows a President to pardon convicts and to reduce prison sentences. (Reference: The Guardian)

In December 2015, according to "Reuters" news agency, Italian President, Sergio Mattarella, had partially pardoned the former CIA Milan station chief Robert Seldon Lady who was convicted for his role in the kidnapping of an Egyptian Muslim cleric under the U.S. "extraordinary rendition" programme. Lady received a nine-year term and this would be cut to seven years.

Another U.S. citizen found guilty in the case, Betnie Medero, was also granted a pardon by Italian President Mattarella, his office said in a statement.

In 2003, German President, Johannes Rau, had pardoned a former member of the notorious and now disbanded terrorist outfit, Red Army Faction. Rolf Wagner, who had spent the last 24 years in jail for being involved in the murder of German Employers’ Association President, Hanns Martin, was set free with effect from December 2003.

Wagner was arrested in November 1979 in Zurich after a bank robbery, during which he had shot dead a women and injured several others during his escape. (Reference: Deutsche Welle or DW)

In January 2016, Sri Lanka's president, Maithripala Sirisena, had pardoned a former Tamil Tiger militant convicted of trying to assassinate him more than a decade ago. Mr Sirisena had set free Sivaraja Jenivan at a ceremony to mark his first year in power. The men shook hands on stage. (Reference: BBC News)

In 1996, former South Korean President, Chun Doo-hwan, was sentenced to death by a Seoul court after he was found guilty of mutiny, treason and corruption.

He was later pardoned by President Kim Young-sam with the advice of then President-elect Kim Dae-jung, whom Chun himself had sentenced to death some 20 years earlier.

President Chun Doo-hwan was sentenced along with his successor and school friend, Roh Tae Woo. The two former South Korean Presidents were separately charged with mutiny and treason in 1996 for their roles in the 1979 coup and the 1980 massacre.

While President Chun’s death sentence was commuted to life imprisonment, President Roh’s 221/2-year jail sentence was reduced to 17 years on appeal.

Both were released from prison in December 1997, pardoned by then-President Kim Young-sam.

The "Washington Post" had gone on to write: "The verdict represents an ignominious end for the two former army generals (Chun and Roh), who ruled South Korea during the 1980s and early 1990s and were instrumental in shaping its emergence as an Asian economic power house."

In January 2017, the outgoing US President, Barack Obama, had offered clemency to several hundred people, both through commuting sentences and granting pardons.

During his time in office President Barack Obama granted 212 pardons and commuted the sentences of approximately 1,715 people, including about 300 drug offenders he pardoned on his last day in office and Chelsea Manning, the transgender Army intelligence officer convicted of leaking more than 700,000 U.S. documents

However some high-profile names like Edward Snowden or Marcus Garvey, were not favoured by Obama.

Edward Snowden, the famous National Security Agency leaker, was charged with espionage in 2013.

Obama had also left office without pardoning, Marcus Garvey, the legendary Black Nationalist Movement leader who was convicted in 1923 on what his family called "politically motivated and bogus" charges of mail fraud.

President Obama had declined to act on a petition for a posthumous pardon of Marcus Garvey, the "Washington Post" had reported.

President Gerald Ford had granted clemency to more than 13,000 of draft dodgers and deserters during the Vietnam War.

In accordance with the US Constitution (Article II, Section 2, Clause 1), American Presidents are vested "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

President George Washington had pardoned, commuted or rescinded the convictions of 16 people. William Henry Harrison was one of only two presidents who gave no pardons. This was due to his death shortly after taking office. The second one was James Garfield. He granted gave zero pardons. This was due to his assassination shortly after taking office.

Here follows the list of other US Presidents who had pardoned, commuted or rescinded the convictions (with number in brackets):

President John Adams (21), Thomas Jefferson (119), James Madison (196), James Monroe (419), John Quincy Adams (183), Andrew Jackson (386), Martin Van Buren (168), John Tyler (209), James K. Polk (268), Zachary Taylor (38), Millard Fillmore (170), Franklin Pierce (142), James Buchanan (150), Abraham Lincoln (343), Andrew Johnson (654), Ulysses S. Grant (1,332), Rutherford B. Hayes (893), Chester A. Arthur (337), Grover Cleveland (1107), Benjamin Harrison (613), William McKinley (918), Theodore Roosevelt (981), William Howard Taft (758), Woodrow Wilson (2480), Warren Harding (800), Calvin Coolidge (1545), Herbert Hoover (1385), Franklin D. Roosevelt (3687 during 4 terms in office), Harry Truman (2044), Dwight D. Eisenhower (1157), John F. Kennedy (575), Lyndon B. Johnson (1187), Richard Nixon (926 pardons. Nixon himself was pardoned just before indictment by his successor Gerald Ford in Watergate Scandal), Gerald Ford (409), Jimmy Carter (566), Ronald Reagan (406), George H. W. Bush (77 only), Bill Clinton (459), George W. Bush Junior (200) and Obama (1715).