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Thursday, 2 December 2010

Some food for thought!

An English Lawyer and a friend of mine has looked into the recent barring of the the President of Pakistan from making the concientious decision to pardon Asia Bibi.  The comments I received are verbatim:

Dear Wilson,

I would think that it would be much better if you consulted a Pakistani lawyer, because I am not familiar with the Constitution, nor am I familiar with the way in which it is normally interpreted in Pakistan. In my humble opinion, I think it all hangs on the interpretation of Articles 48(2), 190, 227 and 248 of the Constitution and Article 55A of the Pakistan Penal Code. The Constitution is too vague and potentially contradictory to determine conclusively the question of whether the High Court can bar the President from granting a pardon, but it seems to me that the High Court does not have jurisdiction to do so. If any court had such a jurisdiction, I would have thought it would be the Supreme Court, but even then I have my doubts.

I would be very interested to see from where the judges of the Lahore High Court thought that they derived their authority—do let me have the decision if you can get hold of it. I suspect that they have used Article 199(1)(c) in combination with the “Right to a Fair Trial/due process” to say that the President can’t interfere with her case until it has reached its conclusion. Wholly spurious! Or perhaps they just looked at Article 227 and said that allowing the President to pardon Mrs. Bibi wouldn’t be Islamic.

The Constitution says as follows:

10A. Right to fair trial:

For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.]

19.Freedom of speech, etc.

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court,[15][commission of] or incitement to an offence.

20. Freedom to profess religion and to manage religious institutions.
Subject to law, public order and morality:-

every citizen shall have the right to profess, practise and propagate his religion; and

every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

25.Equality of citizens.

All citizens are equal before law and are entitled to equal protection of law.

There shall be no discrimination on the basis of sex [15B][*].

Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.

45. President's power to grant pardon, etc.

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.

47. Removal [22][or impeachment] of President.

[22A](1) Notwithstanding anything contained in the Constitution, the President may, in accordance with the provisions of this Article, be removed from office on the ground of physical or mental incapacity or impeached on a charge of violating the Constitution or gross misconduct.

[48. President to act on advice, etc.

(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so [26A][and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever].

175. Establishment and Jurisdiction of Courts.

(2) No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law.

184. Original Jurisdiction of Supreme Court.

(1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any dispute between any two or more Governments.

Explanation.-In this clause, "Governments" means the Federal Government and the Provincial Governments.

(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce declaratory judgments only.

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.

185. Appellate Jurisdiction of Supreme Court.

(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences.

(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence

(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or

(b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or

(c) if the High Court has imposed any punishment on any person for contempt of the High Court; or

(d) if the amount or value of the subject matter of the dispute in the court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [166] [Majlis-e-Shoora(Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or

(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the court immediately below; or

(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.

186. Advisory Jurisdiction.

(1) If, at any time, the President considers that it is desirable to obtain the opinion of the Supreme Court on any question of law which he considers of public importance, he may refer the question to the Supreme Court for consideration.

(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the President.



The Supreme Court may, if it considers it expedient to do so in the interest of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

190. Action in aid of Supreme Court.

All executive and judicial authorities through out Pakistan shall act in aid of the Supreme Court.

199. Jurisdiction of High Court.

(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-

(a) on the application of any aggrieved party, make an order-

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
 (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part 11.

(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.

(4) Where-

(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and

(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest [181] [or State property] or of impeding the assessment or collection of public revenues,

the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order-

(i) would not have such effect as aforesaid;or

(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.

227. Provisions relating to the Holy Qur'an and Sunnah.

(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.

[242] [Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.]

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

248. Protection to President, Governor, Minister, etc.

(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.

As you know, the Pakistan Penal Code says:

55-A. Saving for President prerogative:

Nothing in Section fifty-four or Section fifty-five shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment:

Provided that such right shall not without the consent of the victim or, as the case may be. of the heirs of the victim, be exercised for any sentence awarded under Chapter XVI.

295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet:

Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.

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