ISLAMABAD – Prominent lawyers on Friday said the presidential reference filed in the Supreme Court seeking revisit of history was a vague assertion, which did not constitute a question of law.
SM Zafar said the president would have to file a new reference if he wanted to get an opinion on the already decided case of Zulfikar Ali Bhutto by the Supreme Court. While talking to Pakistan Today, he said the presidential reference involved advisory jurisdiction of the SC and was a very technical matter.
He added that it was confined to a very specific point of law which needed answers on account of public importance and unless both conditions were met, it could not be called a reference. On the question of the SC’s observation pertaining to the reopening of the case, Zafar said, “Revisit of a decided case does not appear to be a right phrase.”
He further said the reopening of ZAB case required different machinery and structure, adding that there was no such provision in the constitution which allowed taking evidence of the whole case again. Another legal expert Anwar Mansoor Khan seconded Zafar’s opinion and said the president could raise question of law in the reference as was done in the Hasba Bill but it seemed that the reference in question had raised the question of facts which could not be discussed again once the matter was disposed of.
On the question of SC’s judgment in ZAB case, he said though it was a split judgment but all the seven SC judges were in agreement on the review petition of the case. Senior lawyer Hashmat Habib said only the legal heirs of Bhutto could approach the court for rectification of good name of ZAB.
He quoted the decisions of several courts including Privy Council, saying, “Only a question of law can be referred to the Supreme Court.” The answer to a question of law always depends on facts assumed in the reference and the reference has to be assumed on the assumption of the facts on which it is made without entering fact-finding.
He continued, “Thus if a question proceeds on certain assumption of facts, the facts stated must be assumed to be correct. The practice of referring abstract question of law to the courts has for several reasons been disapproved by the privy councils.” He quoted that 1973 PLD Supreme Court, Page 563 which stated that “None except the attorney general can claim a right of audience in hearing of a reference and only those to whom notices issued can be heard. Others can address as a matter of courtesy if court permits.”
He said Babar Awan could not appear in court during the hearing of presidential reference except amicus curie. He added that the Supreme Court was still to ascertain whether it was a presidential reference under Article 186 of the constitution.
He further said if the government sanctioned even a single penny for engaging lawyers in the presidential reference, it would constitute corruption and the recipients would also be held liable for corruption.
