THE Pakistani judiciary was condemned for having sentenced Zulfiqar Ali Bhutto to death because of the highly politicised nature of his criminal trial. Writing on the occasion of Mr Bhutto’s death, I had, in an article appearing in the Harvard International Review in May 1979, observed that “[i]n retrospect, it is apparent that not only Mr Bhutto but also the judiciary itself has been on trial”. The truth in this matter remains tainted by the alleged abuse of judicial process. The hanging of Mr Bhutto is termed as ‘judicial murder’ — an expression that connotes ‘the unjustified execution of death penalty’ or ‘wrongful execution’ — a term that denotes miscarriage of justice, which occurs when an innocent person is put to death pursuant to his unfair trial or unjust conviction. What is needed is an authoritative determination regarding not only the veracity of this allegation but also the intentional or unintentional nature of the judicial infraction, if any, and the consequences thereof.

By initiating the trial at the high court level, Mr Bhutto was not only denied proceedings in the proper fact-finding forum but also deprived of one level of appeal. Moreover, the presiding judge in the high court was allegedly, if not manifestly, biased against Mr Bhutto and mistakenly, if not deliberately, relied on the statement of an approver to convict Mr Bhutto.

Furthermore, the Supreme Court of Pakistan gave a split decision (four judges for conviction and three judges for acquittal) in the appeal filed by Mr Bhutto against his conviction by the high court. Last, but not least, the former chief justice of Pakistan, Justice (retired) Nasim Hasan Shah, is reported to have stated in some of his subsequent press interviews that the Supreme Court judgment in Mr Bhutto’s appeal against his death sentence awarded by the Lahore High Court was a wrong decision and it was a fit case for lesser punishment.

Based, inter alia, on the above-noted reasons, the president of Pakistan has filed a reference before the Supreme Court asking it to ‘revisit’ the Bhutto case under Article 186 (advisory jurisdiction) of the Pakistan constitution. Constitutional law experts have decried the efficacy of an advisory opinion in this matter and suggested the invocation of the review jurisdiction of the Supreme Court under Article 188 of the constitution instead. This may not be possible given the fact that the review option has already been exercised unsuccessfully.

While acknowledging the importance of the case, the Supreme Court has pointed out that questions of law are not indicated in the presidential reference and asked the government to frame specific legal questions for the court’s consideration. Based on the facts of the case, I believe that the president should seek the Supreme Court’s opinion on the following specific legal questions:

— Whether the following constitutional rights of Mr. Bhutto have been violated or usurped?

a. To enjoy the protection of law and to be treated in accordance with law (Article 4(1) & 4(2)(a), which, inter alia, states that “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”).

b. Security of person (Article 9, which provides that “[n]o person shall be deprived of life or liberty save in accordance with law”).

c. Right to fair trial (Article 10A, which, in relevant part, provides that “a person shall be entitled to a fair trial and due process [in any criminal charge against him]”. This would necessitate a determination of whether the right to a fair trial extends to a person who has been wrongfully executed and whether this right would apply to Mr Bhutto retroactively).

— Whether there has been any manifest injustice or miscarriage of justice in the conviction of Mr Bhutto by the high court or the Supreme Court of Pakistan?

— Whether there has been unjustified execution of death penalty or wrongful execution of Mr Bhutto particularly in view of his acquittal by the dissenting judges in the Supreme Court appeal and the well-established judicial guidelines and precedents for the award of capital punishment?

— Whether the manifest injustice or miscarriage of justice or unjustified execution of death penalty or wrongful execution, if any, was intentional or unintentional and the legal consequences thereof?

— Whether Mr Bhutto’s family has the right to be compensated for his wrongful execution?

— Whether the following legal maxims are applicable to this matter:

a. Actus curiae neminem gravabit (an act of court shall prejudice no man)

b. Ubi jus ibi remedium (where there is a right there is a remedy)

— Whether the Supreme Court considers the violation or usurpation, if any, of Mr Bhutto’s constitutional rights to be a matter of public importance for which it is able to make an order under Article 184(3) of the constitution?

The above-noted questions are based on constitutional, judicial and international legal norms. In particular, the right to fair trial is well established and recognised universally. Its recent addition in the Pakistan constitution by virtue of the 18th Amendment is only a reaffirmation of the right, which has since long been recognised and applied by the superior courts of Pakistan.

The quest for truth and justice remains in the minds of the people because of lingering doubts about the fairness of Mr Bhutto’s trial. While opinion regarding Mr. Bhutto’s innocence is divided, there appears to be little doubt in people’s minds about the complicit role of the judiciary to help a military dictator eliminate a formidable political opponent.

The presidential reference has given the Supreme Court an opportunity to repair its dented reputation. It is encouraging to note that the apex court has indicated its willingness to give its opinion on specific legal questions. However, what remains to be seen is to what extent the apex court would go beyond its advisory task and play a proactive role in giving Mr Bhutto a more meaningful and effective remedy than that sought belatedly and inadequately by the president.

Public interest demands that the Supreme Court exercise its suo motu powers under its original jurisdiction — the hallmark of its judicial activism — to demonstrate its fairness in undertaking the trial of its own judiciary based, inter alia, on the above-noted legal queries.

The writer is an advocate of the Supreme Court of Pakistan law.hassan@gmail.com