Authored By: Mishaal Amjad
Pakistan College of Law
The power to pardon is one of the most extraordinary privileges vested in the head of state. It is designed as an act of mercy, which is a constitutional mechanism that permits the state to forgive past wrongs in recognition of justice, compassion, or public interest. In Pakistan, this power is enshrined in Article 45 of the Constitution, which grants the President authority to grant pardons, reprieves, respites, or remissions of punishment. [1] However, the wide and virtually unchecked discretion vested in the executive raises a critical question: can such a power be used arbitrarily, even politically?
This article explores whether the presidential pardon is being used as a shield for justice or a sword of impunity. It examines the legal framework in Pakistan and draws comparisons with the United States, where the President enjoys near absolute authority in this regard, and the United Kingdom, where the royal prerogative of mercy has evolved under judicial oversight. Through this comparative lens, the article critically analyses whether Pakistan’s pardon regime strikes the right balance between executive mercy and legal accountability.
In Pakistan, the authority to grant pardons is conferred upon the President under Article 45 of the Constitution of 1973. It 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.” [2]
This provision bestows broad discretionary power upon the President, without explicitly requiring advice, judicial consultation, or transparency in decision-making. However, as per Article 48(1), the President is constitutionally bound to act on the advice of the Prime Minister or the cabinet. [3] Therefore, the power is not entirely independent but is politically controlled.
Pakistani courts have not frequently intervened in pardon cases, primarily due to the political nature of the act. However, the Supreme Court in Said Zaman Khan v Federation of Pakistan [4] acknowledged that although the pardon power is discretionary, it must still be exercised in accordance with the law and public interest. The Court hinted at the possibility of judicial review in cases of mala fide or arbitrary use.
Concerns have arisen about the lack of transparency and potential misuse of this power. For instance, presidential pardons granted to politically connected individuals, or in cases involving serious offences such as terrorism or corruption, have drawn significant criticism from civil society and legal scholars. [5] The lack of published criteria or procedural safeguards adds to the opacity surrounding its exercise.
In short we can say, while the constitutional framework provides for executive clemency as a humanitarian safeguard, its implementation in Pakistan raises serious questions about accountability, legality, and consistency with the rule of law.
The United States Constitution provides the President with sweeping powers to issue pardons under Article II, Section 2, which states:
“[The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” [6]
Unlike Pakistan, this power in the U.S. is unilateral, the President is not required to seek advice from Congress, the judiciary, or any advisory body. [7] Over the years, this has resulted in both laudable uses and widely criticised abuses of the pardon power. Historically, it has been employed to heal national divisions, such as when President Gerald Ford pardoned Richard Nixon after the Watergate scandal.[8]
However, modern uses have ignited intense public debate. President Donald Trump, for instance, issued pardons to political allies including Roger Stone, Michael Flynn, and Steve Bannon,[9] raising concerns about cronyism and the erosion of public trust. [10] These instances underscore the virtually unchecked nature of the U.S. pardon power and the need for potential reform, such as establishing clearer ethical guidelines or independent review mechanisms.
Despite this, the U.S. Supreme Court has consistently upheld the broad nature of this authority. In Ex parte Garland, the Court ruled that the pardon power “extends to every offence known to the law” and “may be exercised at any time after its commission.” [11] Judicial review of the pardon itself remains constitutionally impermissible.
Thus, while intended as a check on the rigidity of law, the U.S. model demonstrates how presidential pardons can blur the lines between justice and political expediency.
In the United Kingdom, the concept of a presidential pardon does not exist in the same form as in Pakistan or the United States. Instead, the Royal Prerogative of Mercy allows the monarch, acting on the advice of government ministers, to grant pardons.[12] This prerogative has evolved from an absolute royal power into a constitutionally controlled and ministerial function, typically exercised by the Secretary of State for Justice.[13]
The use of this prerogative is now exceptionally rare and generally reserved for cases where new evidence proves a miscarriage of justice, such as posthumous pardons or wrongful convictions. [14] A well-known example includes the posthumous pardon of Alan Turing in 2013, decades after his conviction for homosexuality — a “crime” under the laws of his time.[15]
Importantly, the UK courts have recognised the justiciability of this power. In R v Secretary of State for the Home Department, ex parte Bentley, the High Court held that while the prerogative is a matter of executive discretion, its exercise may be subject to judicial review in cases of irrationality or failure to consider relevant matters.[16] This reflects the UK’s growing emphasis on rule of law and legal accountability, even in areas of traditional executive discretion.
Thus, while symbolic in nature, the UK’s clemency framework operates within a transparent, legally reviewable structure that respects democratic accountability.
While the power to pardon serves as a crucial corrective within legal systems, it raises several critical concerns when exercised without adequate checks and balances. Across jurisdictions, the most pressing issues relate to lack of transparency, potential for political abuse, and absence of judicial oversight.
In Pakistan and the United States, the executive holds wide and largely unreviewable discretion in granting pardons. [17] This opens the door to cronyism, where political allies, influential individuals, or those accused of serious crimes — including corruption and terrorism — may be favoured. [18] Such practices undermine public trust in the legal system and create a perception of unequal justice. [19]
Unlike the UK, where the power has become narrow, regulated, and judicially reviewable, Pakistan lacks procedural safeguards to guide or justify the exercise of clemency. [20] There is no obligation to publish reasons, seek input from courts or victims, or even adhere to consistent criteria. The Constitution does not specify any limits, leaving the power open to misuse for political bargaining or shielding loyalists from accountability. [21]
Furthermore, arbitrary pardons may violate fundamental rights, particularly the right to equality before law (Article 25 of the Constitution of Pakistan) and the right to a fair trial (Article 10A). [22] They may also affect the victims’ rights, who are often left without recourse or explanation.
These concerns necessitate a re-evaluation of pardon powers to ensure that mercy does not become a mask for impunity.
The comparative study of presidential pardon powers reveals that unchecked discretion can seriously undermine the rule of law. Pakistan’s constitutional framework, similar to that of the United States, provides a broad executive pardon power with minimal procedural or judicial safeguards.[23] This contrasts sharply with the United Kingdom, where executive clemency has been constrained by constitutional conventions and judicial review, aligning it more closely with democratic accountability.[24]
The Pakistani model currently lacks mechanisms such as mandatory public disclosure, consultation with victims or the judiciary, or even a formal test for when clemency should be granted. While the constitutional language suggests mercy, its use in politically sensitive cases reflects a dangerous trend towards personalised justice.[25] As the Supreme Court in Said Zaman Khan rightly implied, discretionary powers must still operate within constitutional and public interest constraints.[26]
The US experience further illustrates how absolute authority, when combined with political motivation, can erode public confidence in justice. Yet, reforms such as a pardon advisory board, regularised procedures, or codified guidelines could improve transparency and limit arbitrariness.[27]
For Pakistan, the question is not whether mercy should exist — but how it should be regulated to protect the legitimacy of both law and clemency.
The power to pardon, though rooted in compassion and justice, must not be left vulnerable to arbitrary or politically motivated misuse. As demonstrated, both Pakistan and the United States grant their heads of state broad clemency powers, with minimal legal checks, whereas the United Kingdom’s approach reflects measured discretion, shaped by judicial oversight and evolving constitutional norms. [28]
Pakistan’s Article 45, while seemingly humanitarian, demands reform. To safeguard the rule of law and restore public trust, the introduction of clear procedural safeguards, judicial advisory input, and mandatory transparency is essential. [29] Clemency should serve justice, not subvert it.
Ultimately, mercy must operate within a constitutional framework, not above it. A reformed pardon process in Pakistan would not only align with democratic values but also reinforce the principle that no one — not even the executive — is above the law.
Reference(S):
[1] Constitution of the Islamic Republic of Pakistan 1973, art 45.
[2] ibid.
[3] ibid, art 48(1).
[4] Said Zaman Khan v Federation of Pakistan [2017] PLD SC 356.
[5] Hassan Niazi, ‘Unfettered Presidential Pardon and the Need for Reform in Pakistan’ (2023) 14(2) Pakistan Law Journal 112.
[6] US Constitution, art II, s 2.
[7] Margaret Colgate Love, ‘The Twilight of the Pardon Power’ (2007) 100 Journal of Criminal Law and Criminology 1169.
[8] Gerald R Ford, Remarks on Granting Pardon to Richard Nixon (8 September 1974).
[9] Maggie Haberman, ‘Trump Pardons Bannon and Dozens of Others in Final Hours’ New York Times (19 January 2021).
[10] Jack Goldsmith, ‘Trump’s Misuse of the Pardon Power Is a Threat to the Rule of Law’ The Atlantic (24 December 2020).
[11] Ex parte Garland 71 US (4 Wall) 333 (1866).
[12] Cabinet Manual (2011) ch 3, para 3.21.
[13] ibid.
[14] Ministry of Justice, Royal Prerogative of Mercy: Guidance (2019).
[15] Patrick Wintour, ‘Alan Turing Receives Posthumous Royal Pardon’ The Guardian (24 December 2013).
[16] R v Secretary of State for the Home Department, ex parte Bentley [1993] EWHC Admin 2.
[17] Constitution of the Islamic Republic of Pakistan 1973, art 45; US Constitution, art II, s 2.
[18] Hassan Niazi (n 5).
[19] Jack Goldsmith (n 10).
[20] R v Secretary of State for the Home Department, ex parte Bentley (n 16).
[21] Constitution of the Islamic Republic of Pakistan 1973, art 48(1).
[22] Constitution of the Islamic Republic of Pakistan 1973, arts 10A and 25.
[23] Constitution of the Islamic Republic of Pakistan 1973, art 45; US Constitution, art II, s 2.
[24] R v Secretary of State for the Home Department, ex parte Bentley (n 16).
[25] Hassan Niazi (n 5).
[26] Said Zaman Khan (n 4).
[27] Margaret Colgate Love, ‘Reimagining the Federal Clemency Process’ (2015) 27(4) Federal Sentencing Reporter 232.
[28] R v Secretary of State for the Home Department, ex parte Bentley (n 16); Ex parte Garland (n 11).
[29] Constitution of the Islamic Republic of Pakistan 1973, arts 45 and 48(1); Said Zaman Khan (n 4).
