No mercy petition, no presidential pardon

Officials say that the president's power to grant clemency only extends to Tazir punishments.

LAHORE: The home department has not yet received a mercy petition from Aasia Bibi or her family, Dr Jamal Yousaf, the additional secretary home department, told The Express Tribune.

Aasia Bibi, a Christian, was awarded a death sentence after being convicted of blasphemy by a trial court in Sheikhupura last week. The trial lasted 14 months.

The absence of such a petition means that the president cannot pardon Aasia Bibi just yet. Government officials and lawyers that The Express Tribune talked to about the possible legal course of action that Aasia Bibi can take, agree that the president cannot pardon her.

An official of the home department, requesting anonymity, said that Aasia Bibi only has the right to appeal the Lahore High Court (LHC) against the decision of the trial court right now. “In case the LHC rejects her appeal, she can go to the Supreme Court. If the apex court also upholds her death sentence, the convict can then request the president for clemency,” he said.

The official added that according to the legal procedure, when the apex court rejects the appeal against a death sentence, the prisons department sends a request to the sessions judge for signing black warrants of the death row prisoner and fixing a date for execution. A copy of the document is also forwarded to the Presidency, interior ministry and the home department.

During this, the concerned superintendent of jail can forward a mercy petition, either on the request of the death row prisoner or her family, along with the relevant documents. These documents that are submitted to the home department include a copy of the FIR, a copy of the judgment of the trial court, copy of the orders of the concerned high court, Supreme Court and medical certificate of the inmate.

According to Article 45 of the Constitution of Pakistan, the president has the power to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority.

The home department official also said that the Punjab government had observed – in its reply to the federal government’s proposal to abolish the death penalty – that the power of the president to grant pardon only extends to Tazir punishments.

A sentence under a Tazir is imposed on the state’s command and not as a right of the individual under Allah’s law, the Punjab government had held.

Muhammad Safdar Shaheen Pirzada, a lawyer, also said, “The president can grant pardon to a person who has committed any offence against the state. However, the president has no power to extend pardon if an offence is  omitted against religion, the Holy Prophet (pbuh) or Allah.”

Asif Ali Zardari who was sworn in as president in September 2008 had suspended the execution of prisoners on death row in November, 2008 till December, 2010.

Published in The Express Tribune November 24^th, 2010.