ISLAMABAD: The Supreme Court on Tuesday asked the PPP counsel Farooq H Naek to convince the court on the question of maintainability of the long-pending presidential reference pertaining to the ‘judicial murder’ and explain as to why the court should open this matter under Article 186 of the constitution.
Justice Syed Mansoor Ali Shah observed that the question of law was not pertaining to the judgment and there needed to be more than that. He is part of a nine-member larger bench of the top court hearing the long-pending reference. The case proceedings were broadcast live.
Headed by CJP Isa, the larger bench consisted of Justice Sardar Tariq Masood, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Amin-ud-Din Khan, Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi and Justice Musarrat Hilali.
“There is finality attached to the decisions of the court, right or wrong. There could be bad decisions passed by the court [but] they are final. So the question is: what is the question of law that is for us to give our opinion on when the matter is already been settled by the SC,” Justice Shah said.
He said Article 186 of the Constitution — which states that the president can obtain the opinion of the apex court on any question of law he considers of public importance — required to be articulated before the SC.
“Please concentrate on the maintainability and the constitutional question how do we open this matter if at all,” the judge sought.
Naek said three factors are required to be present under the said article: the matter should be of public importance, question of law is involved and the Supreme Court opinion. However, Justice Shah said the top court was responsible for determining the question of law while public importance was to be determined by the president.
The judge further said that the question of law was not pertaining to the judgment and there needed to be more than that. He further stated that the president could start sending references and the court would have to revisit judgments, which was not “the correct way to go about”.
“What is that noble argument that shows that Article 186 can be invoked in this matter?” Justice Shah stressed.
“Mr Naek let me take you to what we think your question is, you are saying that during a deviation period or any dictatorship the judiciary is not independent […] that is a big assumption that you are throwing at us. You are saying that during martial law, the judiciary is not independent hence this is not a fair trial. You will have to bring a very strong case,” Justice Shah said. The PPP counsel, however, replied that he would try to pursue the argument.
At the outset of the proceedings, PPP counsel Farooq H. Naek submitted a request in the court on behalf of Bilawal Bhutto Zardari, saying that the later wanted to become a party in the reference. The CJP said the SC could hear Bilawal as a family member and even as a political party.
Justice Isa said the court had decided to broadcast live the hearing as was desired by Bilawal Bhutto Zardari a day earlier. The CJP directed Attorney General of Pakistan (AGP) Mansoor Usman Awan to read out loud the presidential reference and asked who had filed it.
“President Asif Ali Zardari had filed the reference on the advice of the federal cabinet,” AGP responded, adding that the reference had not been withdrawn by any president to date.
The top judge also noted that most of the amicus curiae (friend of court) appointed in the case had either passed away or excused themselves, adding the court would consider appointment of substitute amicus and take suggestions in this regard.
As the AGP read out loud the case record, Justice Shah remarked that first question that needed to be answered was that on the maintainability. “You will have to assist us that under Article 186 what is the question of law, because a decision has been given by the SC and review has also been dismissed,” he said added now that is the end of the matter.
Senator Raza Rabbani also gave his assent to becoming an amicus for constitutional assistance in the case. The Chief Justice suggested that Justice (retired) Manzoor Ahmad Malik, former AGP Javed Khan, Salman Safdar and Khawaja Haris could be appointed as amicus.
The CJP also issued notice to Geo News for the provision of an interview of Justice Nasim Hasan Shah who was a member of the Supreme Court bench where the matter was earlier decided.
The matter was fixed in court was in Nov 2012, but unfortunately the matter wasn’t fixed in the SC thereafter and remained pending.
The court then adjourned the hearing till second week of January.
In March 1978, a four-member bench of the Lahore High Court (LHC) had awarded the death sentence to PPP founding chairman Zulfiqar Ali Bhutto, which was later challenged in the top court. In a four to three split verdict, a seven-judge top court bench upheld the sentence during the military regime of the then-army chief Gen Ziaul Haq in March 1979.
