There are few ways to mark or mourn a person’s death that transcend the merely symbolic. From lighting candles to placing flowers at a grave site, observing death anniversaries is more about the person who is in mourning than the person being mourned. The one person in Pakistan’s recent history whose death transcends symbolism is Zulfikar Ali Bhutto. That is perhaps because Bhutto, and his ultimate executioner Ziaul-Haq, are the most consequential political figures the country has had since Jinnah. Bhutto, by forming the first truly mainstream political party that encompassed the entire country, by giving the country its last and best constitution and by inspiring millions through force of rhetoric and Zia, for being mostly successful in undoing all of that.
In rhetoric, the PPP has understandably played up all the achievements of its founder. If there is one day to suffer a quick burst of amnesia about ZAB’s many flaws it is undoubtedly April 4, the day of his execution. No crime committed by Bhutto deserved a death sentence, especially at the hands of an illegitimate ruler. Given this history, the sudden proliferation of wreaths, prayers, newspaper advertisements and even a provincial holiday can be forgiven. What is less excusable, though, is the PPP’s decision to request the superior judiciary take another look at the death sentence upheld by the Supreme Court in 1979.
I should make it clear from the outset that in criticising the PPP’s decision to re-fight this judicial battle I am in no way condoning the original decision. Quite the opposite, in fact. Apart from a few dead-enders who still cling to their memories of the wretched Zia regime, no one seriously doubts that the original court verdict and the Supreme Court’s affirmation of it was anything other than a travesty motivated by judges who had either been browbeaten into submission or who were lackeys of Zia. International condemnation of the assassination was almost unanimous. As the decades have passed that consensus has only solidified. Removing this stain from Pakistan’s already-soiled judicial history will not achieve anything practical other than saying, “More than 30 years after a historic injustice we will recognise it was wrong – but only if the political party that was wronged happens to be in power again.”
There is only one possible justification for asking the Supreme Court to acknowledge one past folly. The temptation to account for our past sins is strong, especially when the wound it caused is still festering. But there is a better way to achieve that in a manner that would give supporters of democracy a victory that does more to soothe their anger. The PPP might instead want to ask the Supreme Court to reconsider the means by which Bhutto and other legitimate governments in the country have been overthrown. In the annals of pernicious judicial concepts, few have done as much damage as the Doctrine of Necessity, a code-word that essentially gives a judicial blessing to unconstitutional actions.
In its 2009 judgment against Pervez Musharraf’s second PCO, the Supreme Court did uphold democracy and the rule of law but did not specifically deal with the Doctrine of Necessity, perhaps because some of the sitting judges themselves had invoked it to validate Musharraf’s coup in 1999. So while some may consider the Doctrine of Necessity dead, right now it is only dormant, waiting to be revived by the next military adventurer and compliant judiciary
Trying to get the Supreme Court to repudiate the Doctrine of Necessity would serve both as acknowledgment of past mistakes and hopefully deter future military men with a Napoleon complex from acting on their dreams. At the very least, it would prevent future Supreme Courts from dodging their responsibility to justify egregious violations of the constitution.
Nadir Hassan is a journalist based in Karachi and can be found on Twitter.
The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.