Chief Justice of Pakistan (CJP) Qazi Faez Isa on Tuesday regretted the delay in the fixing of a presidential reference seeking the Supreme Court’s opinion on the 1979 controversial death sentence awarded to former prime minister Zulfikar Ali Bhutto, saying that it “merits determination”.

“[…] This is the oldest pending remaining presidential reference,” he observed.

The chief justice passed these remarks as a nine-member larger bench of the apex court resumed hearing the long-pending reference. The case proceedings were broadcast live.

Headed by CJP Isa, the larger bench consisted of Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.

The reference was filed on behalf of former president Asif Ali Zardari on April 2, 2011, for an opinion on revisiting the death sentence awarded to the former premier under the Supreme Court’s advisory jurisdiction.

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It was filed before the top court under Article 186 (1 and 2) of the Constitution, which empowers the president to refer any question of public importance to the Supreme Court to seek its opinion on an issue.

The reference was last heard by an 11-judge panel, headed by then chief justice of Pakistan Iftikhar Muhammad Chaudhry, in Jan 2012.

In March 1978, a four-member bench of Lahore High Court had awarded the death sentence to Bhutto, which was later challenged in the top court. In a four to three split verdict, a seven-judge SC had bench upheld the sentence during the military regime of the then-army chief Gen Ziaul Haq in March 1979.

Today’s hearing was attended by PPP Chairman Bilawal Bhutto-Zardari, his father and other senior party leaders.

During the proceedings, the apex court noted that the reference entailed several constitutional and criminal questions and appointed amicus curiae (friend of the court) to assist the bench on the matter. It also allowed Bhutto’s family to engage lawyers in the reference if they deemed it appropriate.

Meanwhile, Justice Shah noted that arguments should be foremost presented on the maintainability of the reference and Article 186 of the Constitution, under which the president can approach the SC, needed to be articulated.

The hearing

As the hearing commenced, PPP counsel Farooq H. Naek submitted a request in court on behalf of Bilawal, saying that the latter wanted to become a party in the reference. The CJP said the SC could hear Bilawal as a family member and even as a political party.

Referring to Bilawal’s plea seeking a live broadcast of the hearing, which was filed a day earlier, Justice Isa said the court had decided the same before the submission of the application.

Subsequently, the judge directed Attorney General of Pakistan (AGP) Mansoor Usman Awan to read out loud the presidential reference and asked who had filed it.

“President Asif Ali Zardari had filed the reference on the advice of the federal cabinet,” Awan responded, adding that the reference had not been withdrawn by any president to date.

“I must regret on behalf of the SC that it was not listed earlier because we have a policy now of first in first out unless there is some urgency in a particular case,” Justice Isa remarked.

At one point, the CJP sought details of the counsel representing Zardari to which Naek replied that the then government had appointed Babar Awan as its counsel but the lawyer’s licence was suspended in 2012.

The judge also noted that most of the amici curiae (friends of court) appointed in the case had either passed away or recused themselves, hence the court would consider the appointment of substitute amici and take suggestions regarding the same.

Subsequently, AGP Awan provided and read out loud the case record. As he concluded, Justice Shah remarked that the first question that needed to be answered was that of maintainability.

“You will have to assist us that under Article 186 what is the question of law, because a decision has been given by the SC and the review has also been dismissed. Now that is the end of the matter.

“There is finality attached to the decisions of the court, right or wrong. There could be bad decisions passed by the court [but] they are final. So the question is: what is the question of law that is for us to give our opinion on when the matter is already been settled by the SC,” Justice Shah said.

He added that Article 186 of the Constitution — which states that the president can obtain the opinion of the apex court on any question of law he considers of public importance — needed to be articulated before the SC.

“Please concentrate on the maintainability and the constitutional question: how do we open this matter if at all,” the judge added.

Naek said three factors needed to be present under the said article: the matter should be of public importance, the question of law is involved and the SC opinion. However, Justice Shah said the apex court was responsible for determining the question of law while public importance was to be determined by the president.

The judge added that the question of law was not about the judgment and there needed to be more than that. He further stated that the president could start sending references and the court would have to revisit judgments, which was not “the correct way to go about”.

“What is that noble argument that shows that Article 186 can be invoked in this matter?” Justice Shah stressed.

“Mr Naek let me take you to what we think your question is, your question is that during a deviation period or any dictatorship the judiciary is not independent […] that is a big assumption that you are throwing at us. You are saying that in any martial law, the judiciary is not independent hence this is not a fair trial. You will have to bring a very strong case,” he said.

For his part, the PPP counsel said he would try to pursue the argument.

Here, CJP Isa said constitutional questions were involved in the reference and the court would require two kinds of assistance — constitutional and criminal.

The chief justice then asked Senator Raza Rabbani if he would agree to becoming an amicus, for constitutional assistance, in the case. The PPP leader agreed. CJP Isa suggested that Justice (retired) Manzoor Ahmad Malik, Salman Safdar, former AGP Javed Khan and Khawaja Haris could be appointed as amicus for his expertise in criminal law.

The top court judge added that the amicus could provide their submissions in writing. He also stated that family members of Zulfikar Bhutto could engage counsels if they wanted to.

At one point, CJP Isa also asked why the case wasn’t listed for 11 years. “That is for you to answer,” AGP Awan replied, while Naek said his client had submitted numerous requests on the same.

Justice Isa then proceeded to dictate the order of the day. He said that the last time the matter was fixed in court was in Nov 2012, but unfortunately, the matter wasn’t fixed in the SC thereafter and remained pending.

“Subsequently, several other presidential references were taken up, heard and decided by the court but this is the oldest pending remaining presidential reference,” he observed. “Therefore, it merits determination as early as possible.”

Justice Isa also issued notice to Geo News for the provision of an interview of late Justice Nasim Hasan Shah — who was a member of the SC bench where the matter was earlier decided.

The hearing was then adjourned till the second week of January. The CJP also hinted that once the reference was fixed for hearing again, it may be heard on a day-to-day basis depending on the availability of the judges.

‘A test and opportunity for judiciary,’ says Bilawal

Speaking to media persons outside the apex court after the hearing, Bilawal thanked the SC and all the judges for resuming the case hearing. The PPP chairman recalled that he had filed a petition in 2018 seeking to become a party in the case and his request was accepted today.

“We are thankful to the court. We believe that while this is a test for our judiciary, it is at the same time also an opportunity,” he said.

“We surely want justice for Shaheed Zulfikar Ali Bhutto, surely we want answers to the questions raised by the president in the reference, surely we want the stain on the judiciary to be removed.

“But why do we want this? You can’t bring back Zulfikar Ali Bhutto, Benazir Bhutto, or all the other PPP workers … but we expect that the CJP and his brother judges will do what they can,” Bilawal said.

The former foreign minister demanded that the nation should be told that Bhutto was innocent. “We want the judiciary to fix the history, wash the blood off its hands and expose those involved in this crime,” he said.

“We hope the judiciary has decided to restore the nation’s trust in the institution,” Bilawal stated, adding that the judiciary should take a decision that would set a precedent for the upcoming times.

Earlier, in a post on X (formerly Twitter), Aseefa Bhutto-Zardari said today was an opportunity for the SC to “undo a grievous wrong”. “Let us hope and pray the honourable justices exorcise that shame today,” she added.

Meanwhile, Bakhtawar Bhutto-Zardari said her mother would be proud that her family was fulfilling what she dreamt of doing in her lifetime.