CJP regrets 11-year-long delay in fixing reference against Zulfikar Ali Bhutto's death sentence
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The Supreme Court of Pakistan has resumed hearing on a presidential reference seeking to revisit the death of former prime minister and PPP founder Zulfikar Ali Bhutto after a long gap of 11 years, reported 24NewsHD TV channel.
A nine-judge larger bench of the apex court commenced on Tuesday the long-pending presidential reference which was filed on behalf of former president Asif Ali Zardari on April 2, 2011.
PPP Co-Chairman Asif Ali Zardari, Chairman Bilawal Bhutto Zardari, Senator Raza Rabbani, Sherry Rehman and other party leaders were present in the courtroom as the proceedings were set into motion.
سابق وزیر اعظم ذوالفقار علی بھٹو پھانسی کیس میں صدارتی ریفرنس پر 11 سال بعد پہلی سماعت شروع
— PPP (@MediaCellPPP) December 12, 2023
پاکستان پیپلزپارٹی پارلیمنٹرینز کے صدر آصف علی زرداری اور چیئرمین پی پی پی بلاول بھٹو زرداری کمرہ عدالت پہنچ گئے
چیف جسٹس قاضی فائز عیسی کی سربراہی میں نو رکنی لارجر بنچ سماعت کر رہا ہے… pic.twitter.com/NyTrq1o4kT
Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, the larger apex court bench consisted 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 Chief Justice of Pakistan (CJP) informed the court that the nine-judge larger bench was formed after a senior judge opted to stay out of the bench and two other judges recused themselves for personal reasons. The CJP regretted the delay in the fixing of the presidential reference, saying that it “merits determination”. “This is the oldest pending remaining presidential reference,” he observed.
At the outset of the hearing, Attorney General for Pakistan Mansoor Usman Awan informed the SC judges that the government wanted to pursue the presidential reference.
Earllier in the day, the Supreme Court decided to live-stream the judicial proceedings regarding the hearing of presidential reference. Tuesday’s court proceedings live-streamed on the website of the Supreme Court.
During the hearing, the apex court noted that the reference entailed constitutional and criminal questions and appointed amicus curiae (friend of court) to assist the Supreme Court on the matter.
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 for Pakistan (AGP) Mansoor Usman Awan to read out loud the presidential reference and asked who had filed it.
The AGP responded “President Asif Ali Zardari had filed the reference on the advice of the federal cabinet.” The reference had not been withdrawn by any president to date, he added.
The CJP said “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.”
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 licence was suspended in 2012.
The CJP also remarked 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.
AGP Awan provided and read the case record. As he concluded, Justice Mansoor Shah remarked that the first question that needed to be answered was that on 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 the 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 further said 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.
Farooq Naek said three factors needed to be present under the said article: the matter should be of public importance, the 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, and 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 maintained.
For his part, Farooq Naek said he would try to stick to the argument.
The CJP said constitutional questions were involved in the reference and the court would require two kinds of assistance — constitutional and criminal. He then asked Senator Raza Rabbani if he would agree to becoming an amicus, for constitutional assistance, in the case. The PPP leader agreed. Justice Isa suggested Justice (retd) Manzoor Ahmad Malik, Salman Safdar, former AGP Javed Khan and Khawaja Haris could be appointed as amicus for expertise in criminal law.
The CJP 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 years. “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, many other presidential references were taken up, heard and decided by the court but this is the oldest pending remaining presidential reference. Therefore, it merits determination as early as possible.”
The apex court was also informed that Aitzad Ahsan has declined to become a friend of the court.
Farooq Naek cited a statement of Justice (retd) Nasim Hasan Shah – who was one of the judges to sign Bhutto’s death sentence — that Bhutto was hanged by the court under pressure.
Justice Nasim Hasan Shah had made confession in newspaper and TV interviews decades after he sent Bhutto to the gallows.
Justice Isa also issued notice to Geo News for the provision of an interview of Justice Nasim Hasan Shah — who was a member of the SC bench where the matter was earlier decided.
The hearing was then adjourned till the second week of January. The CJP also hinted that once the reference was fixed for hearing again, it may be heard on a day-to-day basis.
‘Opportunity to undo grievous wrong’
In a post on X (formerly Twitter) on Tuesday, Aseefa Bhutto-Zardari said today was an opportunity for the SC to “undo a grievous wrong”. “Let us hope and pray the honourable justices exorcise that shame today,” she added.
For forty years the hands of the Supreme Court have been stained with the blood of Shaheed Zulfikar Ali Bhutto. For forty years that shame has tarnished the halls of justice. The very judges who were entrusted with dispensing justice admitted to convicting SZAB under pressure…
— Aseefa B Zardari (@AseefaBZ) December 12, 2023
On Monday, PPP Chairman and former foreign minister Bilawal Bhutto Zardari filed an application in the Supreme Court urging live telecast of the court proceedings regarding a presidential reference seeking to revisit the death sentence awarded to Zulfikar Ali Bhutto.
Asif Zardari had moved the Supreme Court under Article 186(1) and (2) of the Constitution, which empowers the president to refer any question of public importance to the apex court for its opinion.
Headed by then chief justice of Pakistan Iftikhar Muhammad Chaudhry, an 11-judge bench held the reference’s last hearing in January 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 Supreme 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.
Reporter Amanat Gishkori