Various popular verdicts, including Bhutto’s dark chapters of history

LAHORE: There are a number of cases in the judicial and political history of Pakistan which are termed black chapters today. Top of them is Zulfikar Ali Bhutto’s hanging on the orders of the Supreme Court of Pakistan.

Various elected governments were sent packing, and validated by the courts. Then these verdicts were termed popular, but today are seen with hatred. Today nobody likes to cite the verdicts which were given under the doctrine of necessity. Justice (retd) Nasim Hasan Shah also rued not accepting Zulfikar Bhutto’s appeal against his capital punishment, said Shahzeb Khanzada in his analysis of the political situation of the country on Friday.

Speaking in his programme ‘Aj Shahzeb Khanzada Ke Sath’, he said that the politics of the country is quite tumultuous currently as a gale of blaming and instability is blowing in full swing, yet the apex court has to give the decision of an important case in such a situation. The Supreme Court is going to give its decision in Panama case anytime. Whatsoever the decision would be it will be of much importance for Pakistan. No doubt, decisions against the powerful ones help nations to grow and are necessary for the future of nations.

Mian Nawaz Sharif is a powerful person by all means. But the question is whether the case will be decided, in his favour or against, on undeniable evidence. Because if evidence are against him and the decision is made in favour of him, that won’t be good for the country. And if the evidence are not undeniable and decision comes against him, then again it won’t be good for the country as well. Indeed, the honourable court knows better whether the evidence are deniable or not for deciding the case in favour of him or against him but political gale and atmosphere are very much there at their places.

A gale is blowing and an atmosphere has been created in favour of Mian Sahib by his supporters and against him by his opponents. Whatsoever the decision would be, that decision will determine the politics, democracy and future of Pakistan. In the past, the decisions of those cases in which political leaders were involved left long-term effects on Pakistan. But a gale would blow at that time and an atmosphere would have been created before those decisions as well. Newspapers would put headlines declaring the decision an epoch-making. Absence of street protests by masses was interpreted as their acceptance of the decision. But the same decisions are considered the dark chapters of our democratic and political history now. Those were admitted as wrong decisions afterward. The court itself declared them wrong.

The matter begins from 1955. Whether it was hanging of Zulfikar Ali Bhutto, invention of the doctrine of necessity, conformity of actions beyond the constitution or justifying decisions, those decisions put deep but negative scars on the politics of the country. Those decisions set precedence but a negative one. No one likes to quote them, today. Even court does not consider those decisions of past as a precedence for its own decisions.

The very first example of such decisions came to the fore in 1955, when the then chief justice of the Supreme Court Muhammad Munir declared the undemocratic decision of dissolving assembly justified under the doctrine of necessity. Later, the same decision, doctrine of necessity fame, provided a lever to the dictators to enter into politics. The same decision provided legal justification for the military intervention by General Ayub Khan in 1958. And the dictators who came afterwards got help from the same doctrine of necessity in breaking the constitution and deposing the elected governments.

Unfortunately, when the said decisions were announced publicly, again a storm emerged that created such an atmosphere that the media, the newspapers of that time, put headlines in favour of the decision. An effect was created that that decision was inevitable and something good was happened. If that wouldn’t happen then what was possible for the country.

Nobody came out on roads against those decisions. That created an impression that people wanted the same should happen. No sane and conscious person favours them today. The doctrine of necessity of Justice Munir was later buried by the court itself. The popular decision of past proved the worst later on. But at a time when the gale was blowing, the atmosphere was made, neither the media, politicians nor the higher judiciary felt that that would prove dark justice.

Another similar example is also part of our history. That too is quoted as an example but as a negative one. Former Prime Minister Zulfikar Ali Bhutto was hanged to pursue the will of a military dictator with the help of judicial system; the same gale emerged on that and an impression was created that though Bhutto was elected yet he was not popular.

Meanwhile, the movement of PNA was launched; the same gale provided that dictator an opportunity to hang the elected prime minister. Nobody uttered a single word. Newspapers too put headlines, created an impression that all that happened was right, that would make the future of Pakistan better. And that decision was given political support also. But today when the storm is settled it’s not quoted as a good example rather that decision is termed a judicial murder.

The Supreme Court itself admitted that, as a respected judge Justice Nasim Hasan Shah, who had rejected the appeal against the capital punishment of Zulfikar Ali Bhutto, wrote a book in 2002 and expressed regrets on that decision made by him. He, while giving an interview, admitted that a space for his survival was there in the case of Bhutto; he regrets why he didn’t write a note of dissent. A popular decision at that time is a black chapter of the political history of the country now.

A gale blew at that time an atmosphere was created so that everything seemed alright; newspapers were also reporting, “All is well”. But after that another dark chapter of the political history of Pakistan opened that shocked Pakistan and democrats seriously.

According to our investigation the court has never given the example of that case during the hearing of any case; means to give capital punishment to any one the case of Bhutto was not quoted as an example.

Let’s talk another black chapter of Pakistan’s politics. During the decade of 1990’s, three elected governments of Pakistan were deposed under Article 58-2(b) of the Constitution in which the democratic parties themselves were involved in toppling the government of each other. The court conform the presidential order twice and rejected it once. No protest was made against all these three decisions, the political leadership was happy and sweets were distributed. The newspapers put again the headlines that something good has happened that the government has ended, corruption was rampant, and the country was not heading for the right direction. That controversy is not remembered in good words in our country. When the political storm was settled, the same decisions were termed disputed.

Another example on this topic is also part of Pakistan’s history. Pervez Musharraf toppled the democratic government made by two-thirds majority in the parliament, court protected his unconstitutional actions, instead. That decision was welcomed during a political gale. PPP distributed sweets.

The supporters and voters of Nawaz Sharif didn’t take to the street to protest against it. That created the impression that what had happened was justified. That was inevitable for the future of the country. The elected prime minister of the country was convicted in plane hijacking case. That decision too was welcomed by the political circles and nobody too to the streets in support of Nawaz Sharif. And then it was declared a black chapter of country’s history.

At that time too, the media used to put headlines comprising ‘All is OK’ and ‘All is well’ and nobody was criticising it. But when we look at that situation today, as the political storm has settled down, and the matter is visible clearly, we find it as a black chapter too. Nobody terms those measures as rightful.

The court itself has declared those decisions and measures taken in the past as controversial. Just after imposing the second emergency, sacked six judges of higher judiciary, some judges supported Musharraf and took oath under the PCO, but afterwards on July 31, 2009, a 14-member bench chaired by the then chief justice Iftikhar Chaudhry, declared the emergency and the second PCO unconstitutional and illegal and also declared the appointments of those judges illegal who took oath under the PCO and buried the doctrine of necessity. Before that in 2002, nobody raised any voice against declaring the unconstitutional actions of a dictator as justified by Justice Irshad Hasan. But that decision too is a black chapter of the judicial history, today.

An important member of Panama execution bench, Justice Azmat Saeed Sheikh, himself has written in his April 20 decision that unfortunately the decision of deposing an elected government through unconstitutional act was upheld; the court considers that decision of the past as a wrong one today.

Therefore, the Panama case is also a historical one. The requirements of law must be fulfilled, by going away, rather far away, from the gale of political wrangling. This case must set precedence for the future on undeniable evidence instead of that political gale and political atmosphere that has been created by political parties and the media, whether that is by the supporters of Nawaz Sharif to save him or by the opposition parties wanting the decision against him. The same has been happening in the past as well. A gale blew but when it got cleared a black chapter was left. Now, therefore, the decision to come should set such precedence that becomes an example for the future but not as a bad example. Because every unprecedented decision couldn’t become a good precedence and that is clear from the precedence of the decisions of courts by itself that how the decisions of courts were remembered in the history.

Whatsoever decision comes in Panama case, if it’s according to the law then it will be written in golden words in history because the decisions made in past delivered nothing but regrets and sense of loss, nothing but the loss of country. Ten to 15 years of the country go waste and other nations supersede and Pakistan takes start from the beginning again and again and regrets that there at its place; and how it happens, have a look:-

[Clip from Justice Nasim Hasan Shah interview]

Nasim Hasan Shah: …acquittal could have been made but (issue was) of his lawyer. He says he doesn’t care for conviction, “I want acquittal.”

I think Bhutto, means that…

Iftikhar Ahmed: You could have given a dissenting note, couldn’t you?

Nasim Hasan Shah: I could have done so… but I think there was a little weakness on our part. Also, the stubbornness of Yahya Bakhtiar had made us a bit angry…

Iftikhar Ahmed: Yahya Bakhtiar made you annoyed? Look, Sir! You yourself admit that Bhutto deserved to be given benefit of doubt. If you do admit it personally as you have admitted, then if you would have written a dissenting note then don’t you think, the history of Pakistan would have been different today?

Nasim Hasan Shah: Can’t say it would have been different or not, but his life would have been saved… I too have been regretting it a lot afterwards….