ISLAMABAD – The legal fraternity on Tuesday smelt a rat in the presidential reference filed with the apex court to reopen the ZA Bhutto case, with almost all leading lawyers considering the reference “not maintainable” under the Article 186.
Supreme Court Bar Association President Asma Jahangir and Justice (r) Fakharuddin G Ebrahim avoided commenting on the presidential reference, while others questioned why the ruling party had taken 32 years to wake up and file the reference just “to set the record straight”.
They also questioned why the Zardari-led PPP government did not take up the matter when the “Dogar court” was functioning in the country with its pro-PPP views and why had the case been taken up now when apparently, the apex court was not in the government’s good books. Senior lawyer Wasim Sajjad said the reference was not maintainable under Article 186 of the constitution as it did not fall under the same context.
He said there was no precedent in the country’s history, even in India, that a SC verdict had been brought for review under Article 186. Recalling the judicial history, Sajjad quoted two examples when governments had raised legal points and not any political issue under the Article 186.
“After Ghulam Mohammad had dissolved the National Assembly in 1950s, he had referred the matter to the court under Article 186 for its legal view on the future strategy. Moreover, the government had again referred a matter on the legal issue of recognising Bangladesh in the early 1970s,” he added.
He said in both cases, the legal view was sought by the government and there was no question of challenging a verdict of the apex court. Justice (r) Khalid Ranjha said the matter was not maintainable under the law. “The matter does not fall under the parameters of Article 186. There is nothing legal in this reference. Moreover, most of the litigants have died along with the witnesses, which would hamper the court to review the matter,” he said.
Ranjha said there was no law to reopen the case and, therefore, parliament should first devise a new law so that the matter could be taken up properly. “Courts decide various matters on a daily basis. Now if cases are to be reopened, this will be a never-ending process,” he added.
Justice (r) Tariq Mehmood said he could not understand the wisdom behind filing the reference. “I think there is a political game behind this move. Politicians take decisions on political whims and take decisions on their own,” he added. He agreed to the notion that this could also be a ploy to defame the judiciary, saying, “If the court terms the reference not maintainable, this would be a right decision under the law.
However, the PPP government will make a political issue claiming that the judiciary is biased. But if the court accepts this reference, the government would play on the verdict as well,” he added. Akram Shaikh said the reference was a pre-emptive move by President Asif Zardari against the NRO case that would be taken up by the court soon.
“The reference does not raise a legal question. Why did the PPP not take up the issue when Benazir Bhutto, the legal heir of late Bhutto, was elected prime minister twice?” he questioned. He said instead of probing into the Benazir Bhutto murder case, President Zardari was making political gimmickry over ZA Bhutto case. Former SCBA president Qazi Mohammad Anwar said the ruling party was once again making an effort to humiliate the superior judiciary.
He said the government was trying to malign the pro-public judiciary just to misguide the masses. “The ruling party is trying to use the Sindh Card. The ruling party is trying to use its gangsters against judges, as the court is going to take up sensitive cases in the near future,” he said.
