I have got the power …!!

Today we again witnessed show of power from our current government. President Zardari used his authority, awarded to him by the Constitution of Pakistan; pardoning the Minister of Interior Rahman Malik who is no doubt becoming more and more controversial, esp. after report published by UN regarding BB assassination.

The article 45, which comes under PART III; chapter I of 1973 Constitution says that:
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.

Frankly if you ask me this is simplest and easiest article which I ever read in constitution. If you want to understand other articles, you might find it very difficult first because of its language, second you mind have to read other articles relating which can be on the hundredth page. Funny thing is that it’s not a new article, it’s been part of Constitution of 1962 which is supposedly the Presidential Constitution and centre had all the powers; it is rather the exact cope paste.

The article 18, which comes under PART III; chapter I of 1962 Constitution says that:
The President has power to grant pardons, reprieves and respites, and to remit, suspend or commute any sentence passed by any Court, tribunal or other authority.

This article has been under discussion for long time, not only in media; this has been massively discussed in Lahore, Sind High courts and also in Supreme Court of Pakistan. Question is Does this Article (i.e: 45) imply with the teachings of Islam?

Objective Resolution was passed on 12^th March, 1949. The idea was to lay down basic parameters of the future constitution of Pakistan. But this Resolution was made part of Constitution of Pakistan neither in 1957 nor in 1962. But it was included in 1973 by General Zia in 1985 with Article 2A which states:
The principles and provisions set out in the objectives Resolution reproduced in the Annex are hereby made substantive part of the Constitution and shall have effect accordingly.

The attached Annex says:
Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;

This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;

Wherein the State shall exercise its powers and authority through the chosen representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;
Wherein adequate provision shall be made for the minorities to(check notes*)profess and practice their religions and develop their cultures;
Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;
Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;
Wherein the independence of the Judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;

So that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity.

If we keep article 2A in mind some questions can be raised that is article 45 according to teachings and requirements of Islam as set out in the Holy Quran and the Sunnah in which whole sole power is Almighty Allah not one person, and doesn’t this article undermine the independence of the Judiciary as it totally suspends the court rulings?

But The Supreme Court in Hakim Khan’s case while examining Articles 45 and 2A accepted the appeal against the said Judgment of the Lahore High. Court and observed that:

…in the instant case, if the High Court considered that the existing provision of Article 45 of the Constitution contravened the Injunctions of Islam in some respects it should have brought the transgression to the notice of the Parliament which alone was competent to amend the Constitution, and could initiate remedial legislation to bring the impugned provision in conformity with the Injunctions of Islam.

So the court leaves everything in the hands of people of Pakistan to let them decide, they want this article. This is actually very funny thing; I am definitely not saying anything against the Court, how can I? Who am I to comment? But I am questioning the some ambiguities in the kind the democracy we have. For example, if people elect the constituent assembly and give them task to amend the constitution, in the election in which this constituent assembly is elected, they voter turnout was only 33%, meaning 67% public rejected all the parties; even among these 33% voters 33% people voted for candidate A, 33% for candidate B and 34% voted for candidate C. C was declared winner which is actually rejected by 66% majority. If this happens to all of the constituencies; the constituent assembly willing to amend the constitution, which can even call this country secular or whatever is actually representative of 23% of people. So if you ask me, it’s very funny kind of democracy we are fighting for.

Anyways let’s go to the original topic of article 45. Even questions rose on this article, different Presidents have used this power many times.

President Muhammad Rafiq Tarar while exercising powers under Article 45 of Constitution, had granted pardon on April 17, 1998 to Parminder Singh Saini, the hijacker of an Indian plane, who later moved to Canada.

Sarabjit Singh, an Indian national condemned to death by the Supreme Court of Pakistan on charges of terrorism and spying, sought the presidential pardon from Pakistani President General Pervez Musharraf under Article 45 of the Pakistani constitution. On August 18, 2005, a division bench of the Supreme Court dismissed Sarabjit’s appeal against the death sentence awarded in the Yakki Gate bomb blast. As his counsel filed a review petition, a division bench of the Apex Court dismissed the same and upheld Sarabjit’s death sentence. Still the case is going on. Last update is of 22 July 2009 which says A fresh application has been filed before the Pakistan Supreme Court seeking review of its decision to dismiss the Indian death row inmate Sarabjit Singh’s petition challenging his death penalty.

Mr. Nawaz Sharif has also enjoyed the pardon from this Article. The pardon order issued by then ‘chief executive’ secretariat on Dec 10, 2000 advises the president to remit the sentence of imprisonment for life awarded to Nawaz Sharif by the Sindh High Court on October 30, 2000 and also remit the 14 years rigorous imprisonment awarded to Nawaz Sharif by the Accountability Court Attock Fort on July 22, 2000. The president Muhammad Rafiq Tarrar remitted the sentences.

Mirza Tahir Hussain, 35, was sentenced to killing of a taxi driver. His conviction was quashed by the Pakistani Supreme Court, but he was then found guilty by The Federal Sharia Court. He was due to be hanged on 1 June 2006, but this was delayed supposedly due to clashes with a scheduled visit to the country from Prince Charles. A new date of 3 August 2006 was delayed until 1 September 2006, reportedly to give Mr Hussain’s family time to negotiate blood money with the relatives of the victim – a practice under Islamic law. The execution was again delayed, and set for 1 October. However, the execution was again delayed, reportedly because it is the holy month of Ramadan.

In spite of a clemency plea by Prince Charles, Mirza was initially given only a two month stay of execution with the new date for execution set for 31 December 2006. However, intervention by Pervez Musharaf, the President of Pakistan resulted in commutation to a life sentence. Under Pakistani law, this equated to a 14 year term. Since Mirza had already served 18 years, he was released. On 17 November 2006 President Musharraf announced that Mirza had been released. He has since returned to the United Kingdom. The mother of his victim had previously threatened to set herself on fire if he did not hang.

In December 14, 2006, Hudood Ordinance was amended, while doing that under The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 section 20(5) was omitted; this omission allowed the chief minister to suspend punishments, which caused uproar among religious circles.

On 11 April 2008 even amnesty international asked the President to use this power by saying, “We are calling on the Pakistani authorities to commute the death sentence in this case under Article 45 of the Constitution – and to take steps to implement an immediate moratorium on all executions. There are currently an astonishing 7,200 people on death row in Pakistan.”

Presidents also enjoy this power on different occasions.

On 3 April 2006, President General Pervez Musharraf granted special remission in sentences of various categories of prisoners on the auspicious occasion of Pakistan Day. The president has granted remission in exercise of his prerogative under Article 45 of the Constitution of Islamic Republic of Pakistan and on the advice of the prime minister

President General Pervez Musharraf announced a special remission of sentences for prisoners in all Pakistani jails on the occasion of Pakistan Day, March 23, 2007 under article 45.

President General Pervez Musharraf granted special remission in sentences to prisoners on the occasion of Eid Milad-un-Nabi (12th Rabi ul Awwal), on 11 April 2007.

On 26 April 2009 President Asif Ali Zardari remitted the sentences of three prisoners, who had been sentenced to amputation of a hand and a leg, under article 45 of the Constitution. The petitioners were sentenced by a special court in Lahore on November 11, 1992. The execution of the sentence was suspended by the then president on June 1, 1994.

Even the people tried to justify the most notorious ordinance, NRO by saying that President has the power to remit all the punishments. But it was answered by saying that President can only remit the punishments, not the cases and it should be done case by case, not in bulk form.

And now on 17 May 2010 Asif Ali Zardari pardoned the interior minister Rahman Malik whose three years punishment was upheld by Lahore high Court. President Zardari had used his discretionary powers to pardon Rahman Malik, protecting him from a three-year sentence awarded by an accountability court in Rawalpindi in January 2004 in absentia under Section 31-A of the NAB Ordinance and upheld by the LHC. But this decision comes when the supreme court of Pakistan and Zardari Administration are standing face to face, Courts is trying to make decision according to Constitution and Government is using its power claiming that these power are granted to them by the constitution of Pakistan.

Whatever the truth may be, I am sure Rahman Malik will be much relieved right now and Mr Zardari will be proudly singing:

I’ve got the power hey yeah heh

Like the crack of the whip I snap attack
Front to back in this thing called rap
Dig it like a shovel rhyme devil
On a heavenly level
Bang the bass turn up the treble
Radical mind day and night all the time
Seven to fourteen wise divine
Maniac brainiac winning the game
I’m the lyrical Jesse James

Oh-oh-oh-oh-oh-oh-oh-oh-oh yeah-eah-eah-eah-eah-eah
Oh-oh-oh-oh-oh-oh-oh-oh-oh yeah
Gettin’ kinda heavy
It’s gettin’ it’s gettin’ it’s gettin’ kinda heavy
It’s gettin’ it’s gettin’ it’s gettin’ kinda heavy
It’s gettin’ it’s gettin’ it’s gettin’ kinda heavy
It’s gettin’ it’s gettin’ it’s gettin’ kinda heavy

I’ve got the power
He’s gonna break my heart
He’s gonna break my heart of hearts
He’s gonna break my heart
He’s gonna break my heart of hearts
I’ve got the power oh-oh-oh-oh

______________________________________________________________________________

*Note: Mr. Ardeshir Cowasjee’s article ‘The sole statesman – 4’ – published in Dawn on July 9, 2000 – makes an interesting observation about a potential disparity between the original Objectives Resolution and the Annex inserted into the Constitution by P. O. 14 of 1985. The word “freely”, which appears in the original Resolution, notes Mr. Cowasjee, is missing from the clause:

“Wherein adequate provision shall be made for the minorities to <freely> profess and practice their religions and develop their cultures;”