Seemingly in response to a statement of Pakistan Muslim League-Nawaz (PML-N) President Nawaz Sharif about setting up military courts in Karachi, which was widely reported in the media and criticised by the political parties, Chief Justice Iftikhar Muhammad Chaudhry observed on Wednesday that there was no room at all for military courts in the country as a constitutional court of ultimate jurisdiction had already shut doors for such courts forever.
Heading an 11-member larger bench of the Supreme Court hearing a presidential reference filed by President Asif Ali Zardari under Article 186 of the constitution seeking to revisit the death sentence of former prime minister Zulfikar Ali Bhutto, the chief justice said the system was being run by the constitution and not by military courts. He said supremacy of the constitution was connected with its strict adherence by the judiciary, adding that the court had rejected the military courts’ law in the Liaquat Hussain case in the past. Referring to dictatorial regimes in the country, he categorically said past
adventurism was enough, so everybody should make it clear that there was no way out for military rule in the country. At the outset of the hearing, Sindh Advocate General Fateh Malik, who appeared on notice, defended the presidential reference saying that the author and architect of the constitution of Pakistan – Bhutto – was hanged, so his case demanded that justice must be done. He said, in fact, the reference was not filed to seek revisiting of the Bhutto case, but to get an opinion of the court on questions of law raised in the reference.
The chief justice observed that the court would deliver an exemplary judgement in the reference, so it had to judge whether it could revisit any duly decided case or not under Article 186 of constitution.
He said the president, being constitutional head of the state, was the president for all. He said it would be better if the presidential reference was defended on legal and constitutional grounds instead of emotional arguments.
The advocate general contended that the apex court had heard Nawaz Sharif’s case after years by expanding its jurisdiction, upon which the chief justice noted that his case was not filed under Article 186 of the constitution.
“Is parliament authorised to declare judicial decisions null and void?” Justice Mian Saqib Nisar asked the advocate general, adding that parliament was the platform for the presidential reference. Justice Sarmad Jalal Osmany noted that the Bhutto case was a unique case in the history of Pakistan, adding that the law was the same for everyone.
In his arguments, federation’s counsel Babar Awan stated that under the constitution the court was bound to hear the questions of law raised in the presidential reference. One of the amicus curiae, Fakhruddin G Ebrahim, submitted that the court had to decide whether the trial in the Bhutto case was legal or illegal and what was its jurisdiction with respect to Article 186 of the constitution and the presidential reference.
He however submitted that one of the judges of the bench that had heard the Bhutto case had confessed in a television programme that he was under immense pressure to deliver a verdict against Bhutto. He said that was enough evidence of a biased approach in the trial. He said that during the martial law period, judges had one eye on the law and the other on the GHQ, as military dictators kept judges in their pockets.
Another amicus curiae Abdul Hafeez Pirzada submitted that it was the prerogative of the president to decide which matter had public importance and might be sent to the Supreme Court for its opinion. He said there was no plea in the reference, but it only sought the opinion of the apex court.
Quoting a recent verdict of the Supreme Court, he said for supremacy of the constitution, Chief Justice Iftikhar Muhammad Chaudhry had also declared the appointment of 102 judges illegal.
The court then adjourned further hearing for Thursday (today).
