If convicted, will Nawaz get a presidential pardon?

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 the President 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