The top judiciary having catharsis is not rare in any society supposedly run by the rule of law and the Constitution. The Supreme Court of Pakistan has regretted a verdict it delivered 45 years ago, which sent one of its tallest post-independence leaders to the gallows.

It has belatedly, but admirably and effectively, accepted that a bench of judges in March 1979 made a grave mistake in convicting ousted Prime Minister Zulfiqar Ali Bhutto.

Being called “mea culpa” it has been hugely welcomed. But it could open the proverbial Pandora’s Box since many more verdicts, under pressure from powerful forces, both civil and military, have been delivered in the intervening years. They continue to cause suffering and trouble discerning minds, outside and at home.

On March 6, 2024, the Supreme Court held: “We must, therefore, be willing to confront our past missteps and fallibilities with humility, in the spirit of self-accountability…we cannot correct ourselves and progress in the right direction until we acknowledge our past mistakes”.

'Miscarriage of justice'

An elected premier, Bhutto was removed from power in 1977 in a military putsch led by his hand-picked Army Chief, General Ziaul Haq. He was charged with the murder of a political opponent. An old case, closed in 1974, was reopened and his trial was manipulated and vitiated from day one.

Bhutto was hanged when the top court rejected his appeal in a flawed four-to-three verdict. Zia never did, but some of the judges were to admit to bias, not following procedures in investigation and trial, ‘constraints’ and in one case, even cowardice, in later years, when the world saw it as a “judicial murder.”

Zia “foresaw one grave, which would contain either his or Bhutto’s body,” Rafi Raza, who was Bhutto’s special assistant wrote. Quoting him approvingly, barrister Rida Hosain says: “As was evident at the time and became clearer in the years to follow, the trial, conviction, and sentence of Bhutto was a blatant miscarriage of justice.”

This week’s unanimous verdict of the nine-judge bench headed by a highly regarded Chief Justice Faez Isa has been called “a landmark”. This verdict itself was delayed. Last heard in 2012, it was the longest-remaining presidential reference made a year earlier by then-President Asif Ali Zardari.

Zardari is Bhutto’s son-in-law and husband of slain former Prime Minister Benazir Bhutto. He is poised to become the president again. But in fairness, Justice Isa had expressed anguish at the delay by the court last December, before prospects favouring Zardari arose.

Opening a Pandora's Box?

However, the top court has opened itself to criticism on the way cases against former Prime Minister Imran Khan have been dealt with in recent months. Khan’s last conviction was just one week before voting in the crucial national elections. Heavily criticised is Khan and his wife’s conviction for marrying “in haste”, before the lady could complete ‘iddat’, the time bar after she divorced her first husband.  

Earlier, the Supreme Court convicted another premier, Nawaz Sharif, for “not disclosing” remuneration in the family business that he was entitled to, even though he had not drawn any. He was barred from holding a public office and jailed. These are but a few cases and arbitrary verdicts that are pro-state cover the dissenters of the day, including ‘nationalist’ youths from the restive Khyber Pakhtunkhwa and Balochistan provinces.  

The Supreme Court first endorsed General Pervez Musharraf's takeover in 1999 and allowed him to rule for three years and then upheld his plans of holding a referendum to extend his tenure for five years. This was despite a clear-cut constitutional provision that maps out the modus operandi of election to the office of the head of state.

Commenting on the latest verdict, the flawed one of 1979 and the present conditions, Dawn newspaper has aptly said in an editorial (March 7, 2024): “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.”

The apex court’s observations on the Bhutto trial, it says, are “a confirmation of the fact that in the past, the pillars of the state — guided by the doctrine of necessity — have participated in undermining the constitutional order they had sworn to protect.”

The ‘establishment’ it refers to is an oft-repeated euphemism for the civil-military elite, which governs Pakistan with or without direct rule by the military and calls all the shots even when an elected civilian government is in office.

The other significant reference is to the “doctrine of necessity.” Invoked whenever the military seized power and declared Martial Law, it was endorsed by the Supreme Court.  A legal and constitutional provision, the doctrine of necessity was first expounded as a criminal law principle: ‘that which is otherwise not lawful is made lawful by necessity’.

Many countries in the past, including Nigeria, Cyprus and Rhodesia, have used it whenever constitutional set-up is removed by force. In Pakistan, it has been used thrice. Believed to be first propounded by two English jurists named William Blackstone (1773-1868) and Henry de Bracton (1210-1268), it was introduced in Pakistan in 1954 by Justice Muhammad Munir of the Chief Court of Pakistan, later designated as the Supreme Court. Munir endorsed Ayub Khan’s Martial Law under this doctrine. From then on, it has been criticised as a military-judiciary complex at play against democracy.

That being the experience, it remains to be seen if Pakistan’s Supreme Court will at some stage hear a challenge to the invoking of the doctrine in the past, although not in force now, with retrospective effect. That would be the litmus test not just in Pakistan, but the apex court anywhere.

(The writer is a veteran journalist, columnist and author who specialises in South Asian affairs. Views are personal. He can be reached at mahendraved07@gmail.com)