IT is almost 45 years to the day that former prime minister Z.A. Bhutto was hanged on April 4, 1979, for a murder he did not himself commit.
Since then, there have been three prime ministers from the PPP – Bhutto’s daughter Benazir (twice), Yousuf Raza Gilani and Raja Pervaiz Ashraf. And an equal number of PPP presidents — Fazal Ilahi Chaudhry, Farooq Ahmad Khan Leghari and Asif Ali Zardari (now twice). None agitated to have Mr Bhutto’s conviction set aside or expunged.
In April 2011, President Asif Zardari (Bhutto’s son-in-law) filed a reference before the Supreme Court under Article 186 of the Constitution, seeking the court’s opinion on whether, in essence, Bhutto had been treated fairly by the Lahore High Court and the appellate Supreme Court.
Zardari’s reference hung fire for 12 years. During that time, the Supreme Court has seen nine chief justices, and the country nine prime ministers. The present incumbent Chief Justice Qazi Faez Isa took up the case. Buttressed by “the able assistance of the eminent legal minds”, a nine-member bench delivered its unanimous opinion on March 6.
Mr Bhutto lives still — through the PPP he founded.
In it, the SC bench construed the silent inaction of successive governments, mainly from other major political parties, as representing a “collective interest”, reflecting “the widespread desire of the people of Pakistan” not to withdraw the reference.
The present SC judges began with a damning indictment of their learned elder brothers: “The proceedings of the trial by the Lahore High Court and of the appeal by the Supreme Court of Pakistan [did] not meet the requirements of the Fundamental Right to a fair trial and due process.”
Regarding the possibility of overturning the original judgement, the Supreme Court maintained that its hands were tied. The original judgement had attained finality after the dismissal of the relevant review petition. It threw the possibility of a pardon into the lap of the president.
In the US, presidential pardons are an oft-used device — from pardoning Richard Nixon to self-pardons, to pardoning the annual Thanksgiving turkey. The highest number, 3,687, were granted by F.D. Roosevelt; the lowest, 11, by Joe Biden.
Will President Zardari use his powers of pardon under Article 45 of the 1973 Constitution and have his father-in-law’s conviction expunged? (It is too late to have Bhutto’s death sentence reversed.) Can he do it without the support of PM Shehbaz Sharif and his PML-N cabinet?
In late 1979, after Mr Bhutto’s hanging, Mr Ijaz H. Batalvi (the lawyer for Gen Zia’s government), at a private dinner in Lahore, referred to Bhutto’s death as inexorable. Relying on Quranic injunctions (“And every man’s fate, We have fastened on his own neck” — 17:13), he asserted that even though world leaders appealed for clemency, Bhutto’s end could not be averted. It was divinely ordained.
A guest suggested that Mr Batalvi was putting a generous interpretation on what many saw as a judicial assassination. Mr Batalvi then looked furtively left and right, as if he feared being overheard. Then he said sotto voce: “I told them. If you want to kill him, take him behind a shed and shoot him. Why are you involving the judiciary in it?” (Given the choice, Mr Bhutto might have preferred the dignity of a military firing squad instead of being hanged from a squalid rope by Tara Masih, at a fee of Rs 25.)
Many years afterwards, the late Justice Nasim Hasan Shah (one of the original, now discredited SC bench) admitted in a TV interview that the death penalty awarded to Mr Bhutto was “partly due to the weakness of the judges, and partly because Bhutto’s lawyer, Yahya Bakhtiar, annoyed the judges by failing to argue mitigation of sentence”. Personal cowardice had been compounded by judicial pique.
Today, Mr Bhutto is beyond physical resurrection. Like the Bengali Netaji Subhas Chandra Bose, whose followers believe he met a ‘deathless end’, Mr Bhutto lives still — through the PPP he founded, through the memory of his martyred daughter, and now the political aspirations of his grandson, Bilawal Bhutto-Zardari.
Bhutto emulated Pandit Nehru. Bhutto, too, left behind for his admirers a trove of political testaments, published articles, speeches and books.
In his scholarship and in his personal life, Bhutto could be fiercely meticulous. For example, he insisted that his name should always be spelt Zulfikar Ali Bhutto with a ‘k’, not Zulfiqar with a ‘q’. Bhutto minded his Ks and his Qs.
Zulfikar Ali Bhutto’s name has been misspelt as ‘Zulfiqar’ on the cenotaph above his grave in the Bhutto necropolis in Naudero. And, inexplicably, throughout the Supreme Court’s opinion.
The SC library might consider investing in a copy of Well’s Court Reporting: Bad Grammar/Good Punctuation (2010).
The writer is an author.
Published in Dawn, March 14th, 2024
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