Zia’s survival hinged on Bhutto’s conviction: SC

ISLAMABD: The Supreme Court on Monday held that the personal survival of General Zia-ul-Haq depended on Zulfikar Ali Bhutto (ZAB) being found guilty hence the continuation of usurped power required Bhutto to be convicted.

A nine-member larger bench of the apex court headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa issued detailed judgement in the Presidential Reference filed under Article 186 of the Constitution, seeking the opinion of the court and re-visiting the trial of former prime minister Bhutto’s murder case.

Other member of the bench included Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.

The court on March 6 after hearing the reference by holding many hearings had opined that Pakistan Peoples Party founder ZAB did not get a fair trial while hearing the presidential reference on his death sentence.

“We did not find that fair trial and due process requirements were met,” said CJP Isa, while reading the court’s short order in the case had announced. Some 12 years back, President Asif Ali Zardari had filed a presidential reference seeking to revisit the sentence, and execution of ZAB.

Bhutto was executed on April 4, 1979, following a verdict of the Supreme Court in a murder case that his party termed as “judicial murder”. “If Mr. Bhutto was acquitted he may have proceeded to prosecute General Ziaul Haq for the crime of high treason. General Ziaul Haq’s personal survival depended on Bhutto being found guilty and the continuation of usurped power required Bhutto to be convicted,” says a 48-page detailed judgement authored by Justice Isa.

The court held that ZAB was neither on trial for corruption nor for violating the Constitution, however, the judges made gratuitous remarks about these matters too and he “treat[ed] the Constitution and the law as a source of unlimited power for himself which may satisfy his own inane craving for self-aggrandisement and perpetuation of his rule. Such a person, in all probabilities, would destroy the very basis of the Constitution and the law which he is sworn to uphold,” said the judgement, adding that such pontification, however, overlooked the overthrow of the constitutional order and democratic rule on July 5, 1977, and of the unabated and continuous savagery of the Constitution.

The detailed judgement noted that another discordant note in the order of the judges of the trial court was expounding the virtues of equality: “Islam does not believe in the creation of privileged classes. It believes in the equality before law of all - ruler and governed alike. It is opposed to all types of class distinction. Even the caliph, the king, the prime minister or the president, by whatever name the ruler Reference No. 1/2011. 46 may be called, is as much subject to the law of the land as any ordinary citizen.”

The detailed judgement noted that no attention was paid to the exceptionalism, and untouchability of General Ziaul Haq, the chief martial law administrator, who had gathered, in himself, all the powers of an absolute monarch.

“The appellate court could not stomach the aforesaid gratuitous observations in paragraphs 610 to 611 of its judgement regarding the personal beliefs of the appellant, delivering a sermon as to the mode of conduct prescribed by Islam for a Muslim ruler,” it held.

The judgement noted that the appellate court, however, considered that justice would be served if these paragraphs were expunged from the judgement of the trial court, adding that it overlooked what was glaringly obvious – the self-expressed prejudice and bias of the trial court.”

The court held that the trial court, which had tried and convicted ZAB, 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,” says the judgement, adding that he was stated to have ‘stepped in to save the country’.

The court noted that the expression of such incredulous admiration undermined the credibility of the appellate court and questioned as to whether it was not obvious that General Ziaul Haq would be the direct beneficiary of a guilty verdict.

Referring to people’s mandate, the detailed judgrment held that General Zia’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,” the court noted, adding that it was not for the Supreme Court to measure populism, nor what it entailed.

It noted that the Supreme Court, including the it three judges who acquitted ZAB, had also declared “that the fundamental rights stand validly suspended since 5th of July, 1977.

Therefore, the court noted that admittedly, the trial was conducted and the appeal heard without ZAB 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,” the detailed judgment noted.

Similarly, it held that the trial and appellate courts were not true courts under the Constitution, and the country was captive to Martial Law and so too were its courts.

“When judges take oath of allegiance to dictators, the courts are no longer of the people,” it concluded.

The judgement acknowledged the assistance provided by all the counsel and amici curie. It also hailed the work undertaken by Justice (retd) Manzoor Ahmad Malik and by his team.

Meanwhile, the detailed judgement mentioned that Justice Tariq Masood and Justice Mansoor would be attaching their additional notes. Likewise, Justice Jamal and Justice Mazhar would contribute their opinions also in support of opinion given by the larger bench on March 6.