On 6 March, the Supreme Court of Pakistan, led by a nine-member bench, in its role under advisory jurisdiction, rendered its opinion on an important case of historic, political and institutional significance. Led by Chief Justice Isa, the bench rendered its opinion on advice sought in 2011 by then-President Zardari.
 
Justice Isa was quoted saying: “We cannot move forward without correcting ourselves until we acknowledge the mistakes of the past.”
 
Of the five questions on which the advice of the Supreme Court was sought, the bench answered three. The primary question was whether the decision of the Lahore High Court and the Supreme Court met the constitutional requirements under the fundamental rights. The bench’s answer to the above question was unambiguous: “The proceedings of the trial by the Lahore High Court 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.”
 
Following are the Questions and Opinions by the Supreme Court:
 
Question-01
Whether the decision of the Lahore High Court as well as the Supreme Court of Pakistan in the murder trial against Shaheed Zulfiqar Ali Bhutto meets the requirements of fundamental rights as guaranteed under Article 4, sub-Articles (1) and (2)(a), Article 8, Article 9, Article 10A/due process, Article 14, Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973? If it does
not, its effect and consequences?
 
Opinion
(i) The proceedings of the trial by the Lahore High Court 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 and 9 of the Constitution and later guaranteed as a separate and independent Fundamental Right under Article 10A of the Constitution.
 (ii) The Constitution and the law do not provide a mechanism to set aside the judgment whereby Mr. Bhutto was convicted and sentenced; the said judgment attained finality after the dismissal of
 the review petition by this Court
 
Question-02
Whether the conviction leading to execution of Shaheed Zulfiqar Ali Bhutto could be termed as a decision of the Supreme Court binding on all other courts being based upon or enunciating the principle of law in terms of Article 189 of the Constitution of the Islamic Republic
of Pakistan, 1973? If not, its effect and consequences?
 
Opinion
Referenced questions do not specify the principle of law enunciated by this Court in the Zulfiqar Ali Bhutto case regarding which our opinion is sought. Therefore, it cannot be answered whether any principle of law enunciated in the Zulfiqar Ali Bhutto case has already
been dissented to or overruled.
 
Questions-03 and 05
Whether in the peculiar circumstances of this case awarding and maintaining of the death sentence was justified or it could amount to deliberate murder keeping in view the glaring bias against Shaheed Zulfiqar Ali Bhutto?
Whether on the basis of conclusions arrived at and inferences drawn from the evidence/material in the case an order for conviction and sentence against Shaheed Zulfiqar Ali Bhutto could have been recorded?
 
Opinion
In its advisory jurisdiction under Article 186 of the Constitution, this Court cannot reappraise the evidence and undo the decision of the case. However, in our detailed reasons, we shall identify the major constitutional and legal lapses that had occurred with respect to fair
trial and due process
 
Question-04
Whether the decision in the case of murder trial against Shaheed Zulfiqar Ali Bhutto fulfils the requirements of Islamic laws as codified in the Holy Quran and the Sunnah of the Holy Prophet (SAW)? If so, whether present case is covered by doctrine of repentance specifically
mentioned in the following Suras of Holy Quran:
(a) Sura Al-Nisa, verses 17 and 18; Sura Al- Baqara, verses 159, 160 and 222; Sura Al- Maida, verse 39; Sura Al-Aaraaf, verse 153; Sura Al-Nepal, verse 119; Sura Al-Taha, verse 82; as well as (b) Sunan Ibn-e-Maaja, Chapter 171,
Hadith No. 395.
What are effects and consequences of doctrine – Re: Repentance
 
Opinion
We were not rendered any assistance on this question; therefore, it would be inappropriate to render an opinion.
 
Following the verdict, the Pakistan Peoples Party (PPP) Chairman Bilawal Bhutto Zardari stated: “A historic step has been taken today, hopefully after 44 years, history will be corrected.” He expressed hope that the “historic” decision would allow Pakistan and its judicial system to move in the right direction.
 
Prime Minister Shehbaz Sharif claimed that while it was “not possible to correct a historical mistake, but by admitting a serious mistake, a new history and tradition has been established,” emphasizing that this would help boost national unity and development.
 
An editorial in Dawn stated: “It can be asked why an over four-decade-old case was dusted up when blatant injustice continues to be meted out today. Perhaps revisiting the Bhutto case is relevant because of these very injustices. It shows that even popularly elected prime ministers can be humiliated, incarcerated and even sent to the gallows when the state desires it, and that the legal system can be manipulated to suit the whims of powerful forces.”
 
Another editorial in The News International argued: “Over the years, the judiciary has been used as a tool by the powerful quarters. It is time those past sins of commission and omission by the judiciary are at least acknowledged. In this, Wednesday’s ruling becomes even more important – an acknowledgment that the judiciary was used to decide the fate of an elected politician who was the real representative of the people. The record had to be set right. And it is encouraging and commendable that the current Supreme Court found it fit to hold the institution accountable for its past mistakes.”
 
Reference: The above question and opinion can be found at The Express Tribune. See, “SC admits Bhutto’s unfair trial after 44 years”