The Supreme Court has resumed hearing a long-pending presidential reference seeking to revisit the 1979 controversial death sentence awarded to former prime minister Zulfikar Ali Bhutto.
A nine-member larger bench of the apex court took up the reference. The case proceedings are being broadcast live.
Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the larger bench consists of Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.
The reference was filed on behalf of former president Asif Ali Zardari on April 2, 2011, for an opinion on revisiting the death sentence awarded to the former premier under the Supreme Court’s advisory jurisdiction.
It was filed before the top court under Article 186 (1 and 2) of the Constitution, which empowers the president to refer any question of public importance to the Supreme Court to seek its opinion on an issue.
The reference was last heard by an 11-judge panel, headed by then chief justice of Pakistan Iftikhar Muhammad Chaudhry, in Jan 2012.
In March 1978, a four-member bench of Lahore High Court had awarded the death sentence to Bhutto, which was later challenged in the top court. In a four to three split verdict, a seven-judge SC had bench upheld the sentence during the military regime of the then-army chief Gen Ziaul Haq in March 1979.
Ahead of the hearing today, PPP Chairman Bilawal Bhutto-Zardari, his father, Sherry Rehman and other senior party leaders arrived at the apex court.
The hearing
At the outset of the proceedings, PPP counsel Farooq H. Naek submitted a request in court on behalf of Bilawal, saying that the later wanted to become a party in the reference. The CJP said the SC could hear Bilawal as a family member and even as a political party.
Referring to Bilawal’s plea seeking live broadcast of the hearing, which was filed a day earlier, Justice Isa said the court had decided the same prior to the submission of the application.
Subsequently, the judge directed Attorney General of Pakistan (AGP) Mansoor Usman Awan to read out loud the presidential reference and asked who had filed it.
“President Asif Ali Zardari had filed the reference on the advice of the federal cabinet,” Awan responded, adding that the reference had not been withdrawn by any president to date.
“I must regret on behalf of the SC that it was not listed earlier because we have a policy now of first in first out unless there is some urgency in a particular case,” Justice Isa remarked.
At one point, the CJP sought details of the counsel representing Zardari to which Naek replied that the then government had appointed Babar Awan as its counsel but the lawyer’s license was suspended in 2012.
The judge also noted that most of the amicus curiae (friend of court) appointed in the case had either passed away or excused themselves, hence the court would consider appointment of substitute amicus and take suggestions regarding the same.
Subsequently, AGP Awan provided and read out loud the case record. As he concluded, Justice Shah remarked that first question that needed to be answered was that on the maintainability.
“You will have to assist us that under Article 186 what is the question of law, because a decision has been given by the SC and review has also been dismissed. Now that is the end of the matter.
“There is finality attached to the decisions of the court, right or wrong. There could be bad decisions passed by the court [but] they are final. So the question is: what is the question of law that is for us to give our opinion on when the matter is already been settled by the SC,” Justice Shah said.
He added that Article 186 of the Constitution — which states that the president can obtain the opinion of the apex court on any question of law he considers of public importance — needed to be articulated before the SC.
“Please concentrate on the maintainability and the constitutional question how do we open this matter if at all,” the judge added.
Naek said three factors needed to be present under the said article: the matter should be of public importance, question of law is involved and the SC opinion. However, Justice Shah said the apex court was responsible for determining the question of law while public importance was to be determined by the president.
The judge added that the question of law was not pertaining to the judgment and there needed to be more than that. He further stated that the president could start sending references and the court would have to revisit judgments, which was not “the correct way to go about”.
“What is that noble argument that shows that Article 186 can be invoked in this matter?” Justice Shah stressed.
“Mr Naek let me take you to what we think your question is, your question is that during a deviation period or any dictatorship the judiciary is not independent […] that is a big assumption that you are throwing at us. You are saying that in any martial law the judiciary is not independent hence this is not a fair trial. You will have to bring a very strong case,” he said.
For his part, the PPP counsel said he would try to pursue the argument.
Here, CJP Isa said constitutional questions were involved in the reference and the court would require two kinds of assistance — constitutional and criminal.
The chief justice then asked Senator Raza Rabbani is he would agree to becoming an amicus, for constitutional assistance, in the case. The PPP leader agreed. CJP Isa suggested that Justice (retired) Manzoor Ahmad Malik, Salman Safdar, former AGP Javed Khan and Khawaja Haris could be appointed as amicus for his expertise on criminal law.
The top court judge added that the amicus could provide their submissions in writing. He also stated that family members of Zulfikar Bhutto could engage counsels if they wanted to.
At one point, CJP Isa also asked why the case wasn’t listed for 11 year. “That is for you to answer,” AGP Awan replied, while Naek said his client had submitted numerous requests on the same.
Justice Isa then proceeded to dictate the order of the day. He said that the last time the matter was fixed in court was in Nov 2012, but unfortunately the matter wasn’t fixed in the SC thereafter and remained pending.
“Subsequently, a number of other presidential references were taken up, heard and decided by the court but this is the oldest pending remaining presidential reference,” he observed. “Therefore, it merits determination as early as possible.”
‘Opportunity to undo grievous wrong’
In a post on X (formerly Twitter), Aseefa Bhutto-Zardari said today was an opportunity for the SC to “undo a grievous wrong”. “Let us hope and pray the honorable justices exorcise that shame today,” she added.
Meanwhile, Bakhtawar Bhutto-Zardari said her mother would be proud that her family was fulfilling what she dreamt of doing in her lifetime.
A day earlier, while speaking to the media, Bilawal had also said that his “bare minimum” expectation from the SC was that it would expose all the individuals who were involved in the “crime”.
He added that those who had died could not be brought back but said he expected justice from the courts to “correct the past”.
Separately, PPP Senator Raza Rabbani had issued a statement on Monday, saying that the hearing was an “opportunity to correct a historic wrong”.
“The judicial murder of Shaheed Bhutto is seeded in a conspiracy between Pakistan’s ruling elite, internal reactionaries and international imperialist powers,” Rabbani had said.
According to the PPP senator, the “judicial murder” was sought by the ruling elite to stem several developments, including socialist economic reforms, the establishment of a federal, democratic, parliamentary system, the establishment of a liberal, progressive democratic society, the supremacy of Parliament leading to civilian ascendancy in affairs of governance, the drive against capitalism and cartels and an independent foreign policy.
More to follow
SC takes up long-pending reference against Zulfikar Bhutto’s death sentence - DAWN.com
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