ZAB's hanging black spot in judicial history: Ebrahim

One of the amici curiae in the ZAB reference, Fakhruddin G. Ebrahim, on Wednesday termed Zulfiqar Ali Bhutto's hanging a black spot in the judicial history of the country. An 11-member Chief Justice Iftikhar Muhammad Chaudhry-led larger bench has been hearing the reference filed by President Asif Ali Zardari under Article 186.
Advocate General Sindh Fateh Malik and Fakharuddin G. Ebrahim and Abdul Hafeez Pirzada from the amici curiae and federation's lawyer Babar Awan appeared before the bench. During the course of hearing, the top legal officer of Sindh Fateh Malik defended the presidential reference with a plea that the architect of the Constitution of Pakistan - Zulfiqar Ali Bhutto - was hanged. Therefore, he added, his case demanded justice.
Malik further contended that the reference was filed with a view to essentially seeking SC's opinion on questions of law raised in the reference. On the occasion, the CJP remarked that the constitution's supremacy was linked to its adherence by the judiciary, adding that the court annulled military court's law in the Liaquat Hussain case in the past.
While referring to dictatorial regimes in Pakistan, the Chief Justice categorically stated that military adventurism was a thing of the past and "everybody must be clear that it is not going to happen in future." The Chief Justice further observed that the bench would deliver an exemplary judgement in the case in hand, adding that the bench had to judge whether or not the SC could revisit any duly decided case under Article 186 of the Constitution.
According to him, the President of Pakistan is the symbol of federation "who should treat everyone equally" and that he should not send the case of an individual to the court. The CJP while addressing the AG Sindh observed that hundreds of mercy petitions were pending with the President. Those petitioners, he added, could also approach the court seeking a revisit to their cases.
According to him, it would be better if the presidential reference is defended on legal and constitutional grounds instead of emotional arguments. Advocate General Malik contended that the apex court had heard PML-N chief Nawaz Sharif's case by expanding its jurisdiction even after a lapse of several years. The CJP responded that his case was not filed under Article 186 of the Constitution.
Justice Saqib Nisar questioned the AG Sindh: "Is Parliament authorised to declare judicial decision null and void?" Justice Nisar further observed that Parliament was the platform to provide a remedy to the presidential reference. Another member of the bench, Justice Sarmad Jalal Osmani, said the ZAB case was unique in the history of Pakistan and that the law was the same for everyone.
The federation's counsel, Babar Awan, said that under the Constitution the court was bound to hear questions of law raised in the presidential reference. Fakharuddin G. Ebrahim urged the bench to decide whether the trial in Bhutto case was legal or illegal as well as to decide the jurisdiction of the court in the presidential reference. An emotionally-charged Ebrahim said: "One of the judges of the bench hearing the Bhutto case confessed in a TV programme that he was under immense pressure to deliver a verdict against former premier ZAB - it is enough evidence of a biased approach in the Bhutto trial".
He added that it was the blackest day in the history of Pakistan when Bhutto was hanged, adding that the Bhutto trial case was a permanent black spot in the judicial history of the country. Ebrahim also said that during martial law, a judge had one eye on the law and the other on the GHQ. According to him, military dictators keep judges in their pockets.
The other amicus curiae, Abdul Hafeez Pirzada, said that it was the prerogative of the President of Pakistan to decide which matter had public importance and could be filed for SC's opinion, adding that there was no explicit prayer in the reference but to seek the opinion of the apex court.
He referred to the decision of the apex court in which Chief Justice Iftikhar Muhammad Chaudhry declared 102 judges' appointment illegal in the light of Sindh High Court decision by maintaining that it was a decision for the restoration of the Constitution. Later on, the bench adjourned the hearing till January 5.