'Clemency must follow law'

FCC rules executive remission cannot override statutory limits

ISLAMABAD:

The Federal Constitutional Court (FCC) has ruled that executive clemency and remission must operate within the framework prescribed by law, holding that the objectives of punishment, public protection and the authority of judicial sentences must remain paramount.

"Judicial sympathy cannot be permitted to override statutory commands," said a judgment authored by Justice Rozi Khan Barrech. Justice Barrech was leading a division bench which heard an appeal filed by Suba Khan, who was sentenced to life imprisonment in 2015.

The convict subsequently obtained general and special remissions from the executive authorities on several occasions. The case concerned the legality of the remissions granted to him and the preparation and issuance of his nominal rolls.

Nominal rolls are issued by the prison department, which functions under the supervision of the Inspector General of Prisons and the administrative control of the provincial home department under the relevant laws.

According to the nominal roll submitted in the case, Suba Khan had undergone nine years, four months and 19 days of imprisonment, while he had been credited with 15 years, seven months and 18 days of ordinary and special remission.

On the basis of that calculation, the nominal roll showed that he was required to undergo only a further five months and 23 days of imprisonment. The Balochistan High Court (BHC) declared all the remissions granted to him illegal. Suba Khan subsequently approached the FCC against the BHC judgment.

In the FCC verdict said judicial sympathy cannot be permitted to override statutory commands particularly where a sentence is related to a heinous offence and the legislature has deliberately prescribed safeguards to ensure that life imprisonment retained its substantive penal content.

"To hold otherwise would not only undermine the integrity of the sentencing process but would also erode public confidence in the fair and lawful administration of criminal justice," the judgment said.

The FCC held that the excess remission granted to the petitioner could not lawfully reduce his imprisonment below the minimum period prescribed under Rules 140 and 217(ii) of the Pakistan Prison Rules, 1978.

 

"Hence, the remissions granted to the petitioner in excess does not meet the minimum threshold of fifteen years of imprisonment as provided in Rule 140 and 217(ii) of the Rules 1978," the judgment said.

 

The court observed that the gravity of an offence and the culpability of an offender had to be considered alongside the statutory remission scheme, which represented the legislature's calibrated balance between encouraging good conduct in prison and preserving the integrity of punishment imposed by a court.

 

It said that when remissions were granted beyond statutory limits, or calculated in a manner that effectively nullified the minimum period of imprisonment prescribed for life convicts, the penal consequences determined by the sentencing court were substantially diluted.

 

"Such an outcome undermines the deterrent and retributive purposes of criminal punishment, diminishes public confidence in the administration of criminal justice, and frustrates the legislative intent underlying Rule 217 of Rules 1978 and other enabling rules," the court said.

 

The FCC further held that the remissions granted to Suba Khan had defeated the legislative intent behind the relevant prison rules.

 

"A remission granted or computed in derogation of the express provisions of the Prison Rules cannot confer an enforceable legal right, nor can this Court lend its imprimatur to an administrative action that travels beyond the authority conferred by law," the judgment said.

 

The court also examined comparative jurisprudence and international standards concerning executive clemency and prison remission. It observed that these authorities affirmed that remission must remain within the legal framework established by the legislature, while reform and rehabilitation of prisoners should be encouraged without compromising statutory limits.

 

The judgment also referred to the Nelson Mandela Rules, the United Nations Standard Minimum Rules for the Treatment of Prisoners.