Presidential pardon possible for Nawaz, Maryam in present setup

ISLAMABAD: Those desirous of seeing Nawaz Sharif and his daughter Maryam Nawaz behind the bars before 2018 elections, may find a major constitutional hurdle - Article 45 of the 1973 Constitution - which could possibly be overcome only if the accountability cases against the accused are further dragged till the arrival of interim set-up.

Without going into the merits of the under trial NAB cases against Nawaz Sharif and his children, it is generally speculated both in media and in political circles that Nawaz, Maryam and Capt (R) Safdar will be convicted and sentenced to jail.

The Sharifs and the Leaguers also fear this and interpret it as part of an alleged “conspiracy” hatched against them. However, their opponents in politics and elsewhere believe that the NAB has a strong case to convict them.

In case the Accountability Court, Islamabad meets its recently extended deadline of May 14 and concludes the case and announces its verdict too, Nawaz Sharif and others if convicted and jailed will have the option of immediately getting the sentence remitted or suspended through the Presidential power under Article 45 of the Constitution.

With the PML-N government in the center and Sharif’s own man in the Presidency, sentence for any term of jail if given by the Accountability Court will not bother the accused as they would be pardoned immediately. However, the things may become complex for the Sharifs and the PML-N if the trial period for the Sharifs is further extended and concluded during the caretaker set-up.

The Accountability Court was primarily given six months period to decide these cases. The initial deadline completed on March 14. Since the trial remains incomplete till March 14, the Accountability Court has recently been given two months extension by the apex court in case of Nawaz Sharif, Maryam and Safdar’s and three months extra time in the case of Ishaq Dar.

With this extension, the new deadline for the Accountability Court in Nawaz Sharif and others’ cases is May 14, 2018 when Shahid Khaqan Abbasi-led PML-N government will still be a fortnight away from completing its tenure. In case of conviction and sentence for jail, the N-League government will have Article 45 of the Constitution to bank on to prevent their leader from going behind the bars.

Article 45 of the Constitution gives power to President “to pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority”.

Although the Constitution in the same article says “The President shall have power to pardon….” but these powers as per judiciary’s interpretation and in view of most of the constitutional experts can be used only on the advice of the prime minister though some believe that this is President’s discretionary power.

Thus in order to get the jail sentence (if given) suspended, pardoned or remitted in the case of Sharifs, they would require the advice of the prime minister, which could be secured during PML-N government but may not happen during the caretaker set-up.

Pardon or remission once granted under the Constitution to any convict cannot be withdrawn. Interestingly Nawaz Sharif’s conviction has been pardoned once before. During Gen Musharraf’s dictatorship, the general under his own signatures while referring to Article 45 of the Constitution had advised the then President (Rafique Tarar) to remit (a) the sentence of imprisonment for life awarded to Nawaz Sharif by the High Court of Sindh in its judgement dated October 30, 2000 in Special A T Appeal No 43 of 2000 under Section 402B of the Pakistan Penal Code read with section 7(ii) of the Anti-Terrorism Act, 1997 and (b) the sentence of R.I for 14 years awarded to Nawaz Sharif by the Accountability Court, Attock Fort in its judgement dated July 22, 2000 in reference No 2 of 2000 under Section 9(a)(v) of the National Accountability Bureau Ordinance 1999.”

Later upon his return from exile, Nawaz Sharif got these convictions nullified from the Supreme Court.

During the last PPP government, the then President Asif Ali Zardari had used these constitutional powers to pardon sentences awarded to the then federal interior minister A Rehman Malik in all National Accountability Bureau (NAB) references.

Malik had appealed to the Lahore High Court to acquit him in the NAB references but the court had upheld the sentences awarded to him following which President Zardari had pardoned him.