Legal questions missing in Bhutto case reference: SC -Pakistan Press Foundation (PPF)

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Legal questions missing in Bhutto case reference: SC

By Nasir Iqbal

ISLAMABAD: The Supreme Court pointed out on Monday the absence of questions of law in the presidential reference relating to the Z.A. Bhutto case and suggested that the reference be sent back so that the presidency could clarify what it meant by asking the court to revisit the Bhutto trial.

“It will serve the purpose if the worthy president reframes the reference and returns it (to the Supreme Court) by tomorrow,” Chief Justice Iftikhar Mohammad Chaudhry suggested to Advocate Babar Awan, who is representing the president in the reference. “Neither you are alien to us nor we to you. Besides, the entire nation knew about the case,” the chief justice said.

The Supreme Court, which has taken up the presidential reference filed under Article 186 (1 and 2) of the Constitution seeking the court’s opinion on the controversial death sentence given to Zulfikar Ali Bhutto, pointed out at the last hearing that the reference did not contain specific questions to answer in terms of the article.

The bench hinted that the matter was still at the preliminary stage till a larger bench was formed and amici curiae appointed to assist it.The court indicated that it might seek a classified inquiry report on the execution of the former prime minister conducted by former Supreme Court judge Shafiur Rehman.

Mr Awan said he could go to the president immediately to ensure that the questions of law were with the court by the evening but requested the court not to get bogged down in hyper-technicalities. Everybody knew that miscarriage of justice had taken place in the case, he said.

Talking to reporters outside the court, Sindh Chief Minister Qaim Ali Shah, who had come to witness the proceedings along with his cabinet colleagues and members of the provincial assembly, said the court should not go into technicalities in this matter because it involved the sensitivities of the people, especially of Sindh, who wanted to see a historical wrong undone.

Citing a book, ‘If I am assassinated’, written by the former prime minister himself, and another by Tariq Ali titled ‘Leopard and fox’, Mr Awan tried to establish bias of the judges who had tried Mr Bhutto and said the bias was one of the questions of law that had vitiated the entire court proceedings.

“These are not adversarial proceedings and if you desire so the court is willing to give its opinion on bias even today,” the chief justice said.

At the outset, the counsel presented some formulations, asking whether the decisions of the Lahore High Court and the Supreme Court in the conspiracy to murder case against Mr Bhutto met the requirements of fundamental rights guaranteed in the Constitution. He asked if the superior court judgments amounted to miscarriage of justice reflecting a glaring bias against Mr Bhutto.

He asked whether the pronouncements against Mr Bhutto by the superior judiciary met the requirements set by the Holy Quran in a number of verses and Ahadith.

But the chief justice made it clear that no-one except the president had the authority or the prerogative to formulate questions in the reference.

Reading out different annexures, Justice Sair Ali said no specific questions of law were before the president and the prime minister at the time of the approval of the reference, nor before the cabinet when it endorsed the proposal for revisiting the execution of Mr Bhutto.

The court adjourned the matter for Thursday with an order stating that the counsel argued the case touching preliminary points relating to the question of law in terms of Article 186 and also referring to two Supreme Court judgments relating to the 2001 SGS case and the 2009 Nawaz Sharif case, but asked for time to dilate upon the issue.
Source: Dawn
Date:4/19/2011