‘Courts were captive to Martial Law’: SC on Zulfiqar Bhutto’s ‘unfair’ trial

ISLAMABAD: The Supreme Court (SC) of Pakistan has observed that the murder trial of former prime minister Zulfiqar Ali Bhutto was ‘unfair and lacked due process’, noting that the country and the courts were captive to Marital Law, ARY News reported on Monday.

The Supreme Court issued a 48-page detailed opinion on a presidential reference filed by former president Asif Ali Zardari more than a decade ago.

Headed by Chief Justice of Pakistan (CJP) Qazi Faez Isa, a nine-member larger bench consisting 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 heard the reference.

The reference filed in April 2011 on behalf of former president Asif Ali Zardari sought an opinion under the Supreme Court’s advisory jurisdiction on revisiting the death sentence awarded to the PPP founder.

In the detailed opinion issued today, the SC said the proceedings of the trial by the Lahore High Court (LHC) and of the appeal by the Supreme Court of Pakistan “do not meet the requirements of the Fundamental Right to a fair trial and due process enshrined in Articles 4 (right of individuals to be dealt with in accordance with the law) and 9 (security of person) and later guaranteed as a separate and independent Fundamental Right under Article 10A of the Constitution”.

In its opinion, the Supreme Court rendered its view on all the questions posed in the reference one-by-one, explaining that during the course of performing their core duty to administer justice “in accordance with the Constitution and the law”, judges were bound to do right to all manner of people, according to law, without fear or favour, affection or ill-will.

There have been some cases in our judicial history, the opinion explained, that created a public perception that either fear or favour deterred the performance of our duty to administer justice in accordance with the law.

It explained that the Trial and Appellate Courts, which conducted the trial and heard the appeal, were not true courts under the Constitution. “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 added.

READ: SC announces opinion on Zulfikar Ali Bhutto reference case

The opinion said that in its advisory jurisdiction, the apex court cannot reappraise the evidence and undo the decision.

Moreover, the opinion noted that the Trial Court, which had tried and convicted Zulfiqar Bhutto, 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 became legislation and his person had replaced the entire democratic order”.

“The expression of such incredulous admiration undermined the credibility of the Appellate Court. Was it not obvious that General Zia-ul-Haq would be the direct beneficiary of a guilty verdict. If Mr. Bhutto was acquitted he may have proceeded to prosecute General Haq for the crime of high treason. Haq’s personal survival depended on Mr. Bhutto being found guilty. The continuation of usurped power required Mr. Bhutto to be convicted,” it added.

The Supreme Court, including the three Hon’ble Judges of the Supreme Court who acquitted Zulfiqar Bhutto had also declared, ‘that the Fundamental Rights stand validly suspended since 5th of July 1977.’

“Therefore, and admittedly, the trial was conducted and the appeal heard without Mr Bhutto having the constitutional protection of the Fundamental Rights and other rights guaranteed in the Constitution,” it added.

It added: “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”.

In March 1979, nearly two years after his government’s ouster by General Ziaul Haq, a seven-judge SC bench had, in a split four-to-three verdict, upheld the LHC’s awarding of a death sentence to the former premier.