ISLAMABAD - Chief Justice Iftikhar Mohammad Chaudhry said on Wednesday that if the Supreme Court reopened the case of the late Zulfikar Ali Bhutto, the court would be flooded by similar petitions by the relatives of all those who had been hanged.
The chief justice further said that the president is the symbol of the federation, therefore, he should treat everyone equally and not send the case of an individual to the apex court.
While hearing a presidential reference that the murder trial of the late prime minister Zulfikar Ali Bhutto be revisited, the chief justice also remarked no one should have any confusion that the chapter for military courts has been closed for good and now there will only be the rule of law.
The chief justice’s remarks were apparently in response to a recent statement made by former prime minister Nawaz Sharif that military courts had performed well to ensure peace in Karachi and he would consider setting up similar courts again in case his party is voted to power. The utterance has sparked a controversy in the country.
An 11-member bench headed by the chief justice is hearing the reference, filed by President Asif Ali Zardari under Article 186. Advocate General Sindh Fateh Malik and two amici curiae including Fakharuddin G Ebrahim, Abdul Hafeez Pirzada and federation lawyer Babar Awan offered their arguments on the subject.
The Sindh Advocate General argued in favour of the reference, saying the matter has been referred to the apex court for its “opinion”.
The chief justice noted that the president has not sought adversarial remarks against anyone, but has asked for court’s opinion. He said the court has to see what type of proceedings need to be held. He said the bench would first decide whether this case is maintainable or not.
Justice Saqib Nisar asked the advocate general whether the parliament could declare the apex court’s decision null and void. The advocate general replied in the affirmative, saying the bicameral legislature has got the power. The judge immediately picked the point and said that in such a situation the parliament, not the court, has the remedy of his grievance.
Earlier, Dr Babar Awan, federation’s counsel in the reference said history is witness that in ZAB cases the judges’ attitude was biased. He said the constitution binds the court to hear the question of law sent by the president and give its opinion.
Fakhar-ud-Din G Ebrahim, amicus curiae, said in Zulfikar Ali Bhutto’s case the judges have accepted that there was pressure on them. It seemed that the then judges and executive were required to hang Bhutto. He said if the court concluded that the judgment in question was biased then the same would be regarded as mala fide. Therefore, he urged the bench to give opinion to the president that the judgment was biased and of no legal effect. “This would rehabilitate Bhutto politically”, said Fakhurddin, who himself is a former judge of the Supreme Court.
Abdul Hafeez Pirzada, another amicus curiae, said the incumbent judiciary after its restoration gave sacrifice of 102 judges and if the reference is sent back without any judgment then that sacrifice will go waste.
The Sindh AG said the architect of the 1973 Constitution (Bhutto) had not been provided justice and his hanging was unjustified. He said now it is for the apex court to decide whether to reopen the case or not. He said matter is of great public importance.
It was at this stage that the chief justice cut in, saying the president represents the entire federation. “The president represents every Tom, Dick and Harry, and for him everybody has the same importance”.
The chief justice said in case the court reopens this case, all those whose relatives have been awarded death sentence would flood the court with similar petitions to seek reopening of their cases. He advised the lawyers that this case should not be seen with special passion, but in the light of constitution and law.
The hearing will resume today (Thursday).