There has never been a dull moment since the Zardari-led PPP came to power. Three years on, the government has suddenly realised it needs to rectify a history's wrong.
Last Friday, the President signed a reference under Article 186 of the Constitution requesting the Supreme Court to revisit the 'judicial murder' case of PPP founder chairman and prime minister, Zulfiqar Ali Bhutto. Ironical as it is, standing close behind President Zardari at the signing ceremony was a man who had celebrated Bhutto's execution by distributing 'mithai', the insufferable Babar Awan. He later forwarded the reference to the apex court as law minister in the government of ZAB's party.
All wise men have been busy examining clause (i) of the said article which states "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." The Supreme Court has admitted the reference for hearing on April 13. It is unclear though whether that day's proceedings are to focus on its maintainability or the opinion point. In either case, any discussion at this time of those aspects of the reference risks treading into the danger zone called contempt of court.
Irrespective of what happens on April 13, there are other questions that beg answers, such as why now? And more importantly, why the judiciary is being asked to revisit the case and determine whether or not Bhutto's hanging was a judicial murder. After the demise of General Ziaul Haq's regime the people of this country returned ZAB's daughter, Benazir Bhutto, to power not once but twice. Yet she made no such move although soon after she became prime minister, Benazir held an international conference of jurists which unanimously declared Bhutto's death sentence as judicial murder. Two explanations readily come to one's mind as to why she did not go for the present option.
First, during Benazir's two prime ministerial terms, the democratic system was still very weak. The establishment retained substantial influence on the executive and the judiciary. Hence it can be argued that she did not think worth its while to have her party appointed president to send the reference, like at present, to the judiciary to clear her father's name of a crime he did not commit. A better reason though is the legal experts' opinion that this particular constitutional provision is meant for clarifying legal points pertaining to ambiguity regarding constitutional matters, and that criminal cases do not come under its purview.
Another reason why ZAB's daughter did not think of this option seems to be that the legal impropriety of the trial has never been in doubt. Both local and international jurists have held that the sentence was politically motivated, and that several members of General Ziaul Haq's PCO affected judiciary made shameful compromises to send the prime minister to the gallows. What happened to Bhutto is widely seen as a judicial murder, which is why the case has never been cited as a precedent in this country's 32-year legal history since the hanging.
A vital affirmation of that opinion has now come from the only surviving member of the Supreme Court bench which confirmed Bhutto's death sentence, former Justice Nasim Hassan Shah. He has publicly admitted in a television interview, and more recently in his published autobiography, that the judges, including himself, who handed Bhutto the death penalty did so under pressure from the regime.
His admission is the strongest possible proof - if a fresh proof was needed - of the fact that Bhutto became a victim of an unholy alliance between a military dictator and higher judiciary. Justice Shah also trotted out a bizarre explanation to defend awarding death sentence to an innocent man, saying he was inclined towards a milder punishment but changed his mind because of the defence lawyer's uncompromising approach.
In other words, this former chief justice of Pakistan sentenced a prime minister to death not because he was guilty but because he (the judge) felt somewhat slighted, according to him, by the defence lawyer's attitude. There cannot be a more convincing evidence of miscarriage of justice than this. This self-confessed 'judicial murderer' is still around, proudly selling an account of a deeply flawed life. He must be brought to book.
That is imperative to fulfil the requirements of justice as well as to set an example for potential future collaborators. Doing so would be far more important than to obtain opinion from the present-day independent judiciary to confirm something we have known all through the 32 years since Bhutto's execution.
What could be a better proof of the crime of Bhutto's judicial murder than the admission of one of the murderers himself? But that is not what the PPP leader is looking for. The purpose is to discredit judiciary as an institution, and the reason is the fast approaching conclusion of various corruption cases pending against Zardari in the apex court. There is a two-pronged strategy. If the court refuses to revisit the case, that can be used to launch a victimhood campaign; in the event it gives an opinion in conformity with the largely held view, a wrong of the past could help cast aspersions on the judiciary's ability to deliver free and fair decisions. The message would be that they delivered bad judgements in the past, and they continue to do the same, maligning the Sindh based PPP's leaders in false cases.
Notably, in urging reopening of the Bhutto case, the reference also cites the example of the Punjab-based former prime minister Nawaz Sharif (who is actually a Kashmiri), whom the court gave a chance to exonerate himself in the plane hijacking case upon return from a long exile.
Thus the usual 'Sindh card' is being invoked, too, to reignite by now the standard controversy that the Punjabi-dominated establishment protects its own and badly treats people from smaller provinces. The reference is a mischievous attempt to turn personal problems into nasty political issues. That is unlikely to make any difference vis-à-vis the outcome of the NRO and other cases. But it will give people something to talk about until the Zardari PPP creates another situation, which catches the attention of political pundits as well as ordinary people.
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