ISLAMABAD: The Supreme Court is likely to determine if the award of remission to prisoners convicted under terrorism charges is a privilege or a basic right. And to reach a definitive conclusion, a three-judge Supreme Court bench, headed by Justice Mushir Alam, intends to seek the assistance of religious jurist consultants as amici curiae to understand the real meaning of Fasad-fil-Arz.

The names of Islamic scholars will be decided by the court later and the case will be taken up again after two weeks.

The idea to seek the assistance of Islamic scholars occurred to the bench when Additional Advocate General for Punjab Qasim Ali Nawaz Chohan, during the hearing, cited Ayat 33 from the Surah Al-Maida, which states: “Those that make war against Allah and his Apostle and spread disorders in the land shall be put to death or crucified or have their hands and feet cut off on alternate sides or be banished from the land.

“They shall be held in shame in this world and sternly punished in the next except those that repent before you.”

The Supreme Court is seized with a set of appeals instituted by Punjab as well as the Khyber Pakhtunkhwa against the decision of respective high courts in favour of the convicts who were awarded sentence under the Anti-Terrorism Act, 1997. The question to be determined is should remission be awarded to prisoners who were convicted under the Anti-Terrorism Act, 1997, especially after amendment in Section 21-F of the Act in 2001.

The court is seized with a set of appeals instituted by Punjab and Khyber Pakhtunkhwa

Section 21-F deals with the remission and explains that this facility was not available to persons, other than a child, convicted and sentenced for any offence under this act.

During the hearing Justice Umar Ata Bandial, also a member of the bench, observed that rights were something which was vested, but the real question would be to determine should not we adopt an approach to reform the convict or close every door to make him a hardened criminal.

AAG Qasim Ali Nawaz Chohan, while representing the Punjab government and assisted by Additional Inspector General Prisons Dr Qadeer Alam, argued that the purpose and intent of the act, especially after the Oct 15, 2001 amendment in Article 21-F, will stand defeated if the remission was to be awarded to the convicts since ATA is a special legislation aimed at combating menace of terrorism.

The Punjab government argues that the authority of the president to grant remission was made under Article 45 of the Constitution on the advice of the prime minister and under this authority the president grants special remission in sentences to the convicts on different occasions.

But prisoners sentenced for murder, espionage, anti-state activities, sectarian, Zina, robbery, dacoity, kidnapping, abduction and terrorist acts as defined in the ATA were not entitled to get the benefit of such remission.

The provincial government contended that the remission was a constitutional prerogative of the president under Article 45 of the Constitution and this prerogative of the president does not seem to be in conflict with any of the pronouncements made by the superior courts of the country.

Punjab argues that the Peshawar High Court, in the 2019 Abdul Wahab judgement, had held that the president had unfettered powers to grant remission under Article 45.

This concept was also upheld earlier by the Supreme Court in the 1992 Bhai Khan case in which the court had observed that the power of the president under Article 45 was not subject to any limitation or conditions that may be found in the Pakistan Penal Code, 1860. or the Code of the Criminal Procedure Code, 1898.

Likewise, the apex court through its judgment in the 2016 Zahid Javed case held that Article 45 whereby the president was empowered to grant pardon was not a judicial or quasi-judicial function. It was the exercise of a prerogative conferred upon the head of the state by the Constitution on the advice of the government to pardon a person or commute a sentence and therefore it was an executive function.

The Punjab government contends that the apex court in the 2010 Nazar Hussain case had held that the policy of remissions formulated by the interior ministry in 2002 was neither arbitrary nor discriminatory. It was based on an intelligible differentia which was permissible and therefore not violative of Article 25 of the Constitution that speaks of equality.

Similarly, the Sindh High Court in the 2020 Junaid Rehman Ansari case stated that the wording used in Section 21-F of the ATA made it clear that the legislature intended that no remission would be applicable to persons convicted for the offences under the ATA.

The judgment had observed that the legislature would have known the effect of such a section and would have provided it in the ATA after much thought and consideration, especially as it was added by way of an amendment to the ATA four years after the ATA was promulgated by an ordinance.

Despite the insertion of Section 21-F in the ATA in 2001, over 18 years ago, none of the three successive democratically elected legislatures deemed it fit to remove it, the SHC had observed, adding that this was an indication that successive legislatures were satisfied that Section 21-F was justified.

The SHC had also observed that the ATA was a special law and it was well settled by now that it will take preference over a general law and even other special laws such as the Prison Act since the ATA has been passed later in time with the legislature being well aware of the system of remissions provided the Prison Rules.

Published in Dawn, September 16th, 2020