ISLAMABAD: When the judges take an oath of allegiance to the dictators, the courts are no longer of the people, noted a detailed judgment of the Supreme Court (SC) on Zulfikar Ali Bhutto reference.
A nine-member SC bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice AminudDin Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Mussarat Hilali on March 6, 2024, unanimously, delivered opinion on Presidential Reference.
The Supreme Court noted that due process and fair trial were not complied with in the murder trial of founder Pakistan Peoples’ Party Zulfikar Ali Bhutto by the Lahore High Court (LHC) and of appeal by the apex court.
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In the 48-page judgment, authored by Chief Justice Qazi Faez Isa, the apex court said that the trial and Appellate Courts, which conducted the trial and heard the appeal, were not true courts under the Constitution. The country was captive to Martial Law and so too were its courts.
It noted that no attention was paid to the exceptionalism, and untouchability of General Zia ul Haq, the Chief Martial Law Administrator, who had gathered in himself, all the powers of an absolute monarch.
The judgment said that the trial court, which had tried and convicted Zulfikar Ali Bhutto, and the Appellate Court, which had dismissed his appeal, were operating when there was no constitutional rule in the country and one man’s will (and whim) became legislation and his person had replaced the entire democratic order.
Unfortunately, the Chief Martial Law Administrator was adulated in another case. He was stated to have “stepped in to save the country”. The expression of such incredulous admiration undermined the credibility of the Appellate Court. Was it not obvious that General Zia ul Haq would be the direct beneficiary of a guilty verdict. If Bhutto was acquitted he may have proceeded to prosecute General ZiaulHaq for the crime of high treason.
General ZiaulHaq’s personal survival depended on Bhutto being found guilty. The continuation of usurped power required Bhutto to be convicted.
General Zia ul Haq’s unconstitutional act was “construed in the nature of a mandate from the people of Pakistan.” It was not at all necessary, nor desirable, to state how popular he was. It was not for the Supreme Court to measure populism, nor what it entailed.
The judgment said the Supreme Court, including three SC judges who acquitted Bhutto, had also declared, “that the Fundamental Rights stand validly suspended since 5th of July 1977.” Therefore, and admittedly, the trial was conducted and the appeal heard without Bhutto having the constitutional protection of the Fundamental Rights and other rights guaranteed in the Constitution.
Any single one of the aforesaid noted transgressions may have vitiated the trial and the conviction, however, cumulatively they destroyed any semblance of due process and fair trial, and revealed that innocent men were rushed to the gallows.
PPP government on April 02, 2011, had filed a reference in the apex court to reopen case of former prime minister and founder PPP Zulfikar Ali Bhutto, who was hanged on April 4, 1979, in Rawalpindi.
Former president Asif Ali Zardari forwarded a reference to the SC under clauses 1 and 2 of Article 186 of the Constitution for revisiting the case of Zulfikar Ali Bhutto. Babar Awan had argued the reference on behalf of the PPP government.
The proceedings of the reference were broadcast live on the official website and the YouTube Channel of the Supreme Court.
Makhdoom Ali Khan, Khalid Jawed Khan, Salahuddin Ahmed, Yasir Qureshi and Reema Umar were the amici, Zahid Ibrahim represented Zulfikar junior, Farooq H Naek appeared on behalf of PPP Chairman Bilawal Bhutto-Zardari, Raza Rabbani represented Sanum Bhutto, Aseefa Bhutto and Bakhtawar Bhutto.
Copyright Business Recorder, 2024