President’s power to pardon or remit conviction: Article 45 may land in SC for interpretation

ISLAMABAD: Article 45 of the Constitution that grants the President the power to pardon or remit any conviction against anyone may be interpreted along partisan lines and may eventually land up in the apex court.

Speculation is rife in the federal capital that President Arif Alvi may invoke Article 45 to pardon former Prime Minister Imran Khan’s conviction.

The delay, Pakistan Tehreek-e-Insaf loyalists claim is to wait for the final court decisions in former Prime Minister’s more serious cases and then grant a blanket pardon. Critics however maintain that the President may have been advised that Article 45 is not applicable on all convictions particularly those relating to treason and jeopardizing national security.

Talking to Business Recorder, Sardar Latif Khan Khosa, senior counsel of the Supreme Court, said that the President on his own discretion or the advice of the Prime Minister can pardon or remit any sentence under Article 45 of the Constitution which stipulates 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.”

Khosa termed the Toshakhana case against the former prime minister as not a serious crime which, he insisted, will be set aside by the High Court; the cipher case, he added, is no case as a prime minister enjoys immunity under Article 248 adding that the Federal Investigation Agency (FIA) has no power to investigate a premier.

There is no bar on his power to grant pardon, Khosa said as all over the world the head of the State has the power to pardon, commute, reprieve and respite any convict.

Talking to Business Recorder on condition of anonymity, a senior civil servant disagreed and categorically stated that the President cannot pardon or give remission of those convicted of high treason, relating to national security, anti-state activities, terrorism, financial crimes, causing a loss to the national exchequer, sovereignty and integrity of the country.

In other cases, he explained that the President can only invoke Article 45 on the advice of the Prime Minister.

President Alvi has so far not visited former prime minister in jail, and when Business Recorder asked Ali Murtaza, a member of PTI’s legal team, said that the office of the president is non-partisan and the party workers are unhappy with the ‘non-partisan’ role of the President, therefore he may not have thought it appropriate to visit.

When reminded that the president’s non-partisan role was frequently and legitimately brought into question by the opposition when Imran Khan was the Prime Minister PTI supporters did not respond.

President Dr Arif Alvi will continue to hold his office under the constitution despite completion of his five-year term on 8 September this year until his successor is elected.

With the dissolution of the federal and all four provincial assemblies and retirement of half the Senate on 3 March 2024 the electoral college for the election of the president will remain incomplete till general and subsequently Senate elections are held.

President Alvi may resign at any time but that decision may well depend on exogenous factors – exogenous to his own motives or his family’s or of the party that elected him as the country’s thirteenth president, senior party leaders of the major political parties told Business Recorder during background discussions.

If President Alvi resigns, considered unlikely at present, chairman Senate will act as acting president.

Copyright Business Recorder, 2023