SC finds flaws in Bhutto reference
By Nasir Iqbal
ISLAMABAD: The Supreme Court, in a rather cautious manner, pointed out on Thursday flaws in the reference filed by the president on the apex court’s verdict of 1979 against Zulfikar Ali Bhutto, the founder of Pakistan People’s Party.
It asked the government to frame specific questions of law which could be answered by the court on the controversial death sentence handed down to the former prime minister.
The court has taken up the reference filed under Article 186 (1 and 2) of the Constitution. When the reference was being filed, critics had objected that it did not specify any points of law which are all that can be examined by the court under this article.
So cautious was the judiciary that it did not even assert that something was missing from the reference; instead it specified that it was asking for clarifications.
“Perhaps no question of law has actually been referred to in the reference,” observed Justice Mohammad Sair Ali, one of the members of a three-judge bench, before the proceedings were adjourned till Monday.
“There must be some specific questions in terms of Article 186 so that the court can answer it,” observed Chief Justice Iftikhar Mohammad Chaudhry, as he looked towards Babar Awan, who has resigned as federal law minister to represent the president in the reference.
Although the counsel read out the entire reference before the bench, the chief justice observed that the court was finding it difficult to define the questions of law raised by the reference.
He added that the court was bound to answer the reference but within the four walls of the constitution and the law.
That the court was stepping gingerly was evident from the chief justice’s remarks that the reference had been drafted by someone who had mixed up things.
But this gentle criticism aside, the court assured the counsel that it was taking the matter very seriously and would hear it thoroughly and without haste.
The court went so far as to ask the counsel for the summary placed before Prime Minister Yousuf Raza Gilani in the hope that the questions may be present in that document.
However, Mr Awan explained that the reference was filed after the decision to do was taken by the ruling PPP in a meeting of its central executive committee; only after this were the questions for revisiting the case brought before the special cabinet meeting.
“This is an important case and when you are at the helm of affairs, your responsibility doubles,” the chief justice said, adding that some solution had to be found because the court did not want to encourage the perception that the case of anyone who had been sent to the gallows could be revisited.
He explained the complexity of the case at hand by pointing out that the apex court had to revisit the Lahore High Court’s verdict that awarded the death sentence; the Supreme Court verdict that rejected the appeal against the death sentence and then the review.
Before adjourning the matter, the court also asked Mr Awan to carefully study the new concept of curative jurisdiction of the courts that had developed in India since 2002.
Before the court offered its observations, the proceedings began with Mr Awan’s arguments. The counsel explained how July and November were crucial months in Pakistan’s history.
On the night of July 30, 1978, the LFO judiciary concluded the case of Mr Bhutto, he said before adding that on July 31, 2009, the Supreme Court declared illegal the act of Gen (retd) Pervez Musharraf in proclaiming the Nov 3, 2007 emergency.
He then cited book after book to establish that the trial had not been fair. He referred to “Memoirs and Reflection”, the memoirs of former chief justice of Pakistan Dr Nasim Hasan Shah in which he conceded that he had been asked to join the bench hearing the appeal of Mr Bhutto despite the fact he was an ad hoc judge at that time; Mr Shah admitted that this was a departure from normal practice.
Similarly, the counsel also referred to Mr Bhutto’s book “If I Am Assassinated,” especially the chapter “Death Cell and History”. In this chapter, Mr Bhutto had written that regardless of his status as the president and the prime minister of the country, he was entitled to a fair trial as a citizen of this country. The trial did not give Mr Bhutto the right of defence at all, Mr Awan emphasised.
He also referred to the book by Col (retd) Rafi, who was in charge of security of the death cell where Mr Bhutto was held. Col Rafi had written that he had been ordered not to release Mr Bhutto even if the Supreme Court acquitted him.
The chief justice added to the reading list of Mr Awan by suggesting that “Leopard and Fox” by Tariq Ali was a far better book.