Reopening the Bhutto case - Babar Sattar - Saturday, April 09, 2011

The writer is a lawyer based in Islamabad.

President Zardari has sought an advisory opinion from the Supreme Court under Article 186 of the Constitution that is being seen as an effort to reopen the Bhutto murder case. This article authorises the federal government to seek the apex court’s opinion on a question of law that has public importance. The text of the presidential reference has not been made public and thus it is unclear how the question of law has been framed.

Many in Pakistan believe that Bhutto’s hanging amounted to judicial murder and something ought to be done to correct the wrong. Others argue that under Bhutto’s watch the Federal Security Force instituted a reign of terror and our first elected prime minister brutalised his opponents at will. The reopening of the Bhutto case is thus an emotive issue for many.

In rendering an opinion under Article 186, the Supreme Court will be limited to addressing the question of law raised by the Zardari regime and hence unable to take into account the factual controversies peculiar to the Bhutto murder case. Critics argue that the Zardari regime’s mala fide intent is apparent in this choice of means, as it is incapable of serving the desired end. Given that the Bhutto case cannot be reopened pursuant to a reference under Article 186, this course of action has been deliberately selected to undermine the credibility of the apex court, argue that the judicial branch harbours an ethnic bias, and present the NRO decision and other rulings against the Zardari regime as a manifestation of such bias.

Notwithstanding the vile intent attributed to explain this move (backed by evidence of the Zardari regime’s readiness to play victim and use the Sindh card every time it gets in trouble), there can be no principled objection to finding legal ways to reopen the Bhutto case.

Bhutto might be a terrible man who couldn’t stand dissent, had a feudal mindset and unleashed ruffians upon his critics. But Bhutto was not tried for creating the FSF, getting his opponents molested or launching an operation in Baluchistan. He was tried and hanged for the murder of one man. The demand for reopening the Bhutto case rests on the argument that his conviction was based on evidence insufficient to establish his connection to the murder and the death sentence was disproportionate to the alleged wrong he had committed.

If this contention is correct and there is evidence to establish that he was wrongfully convicted, his legal heirs and supporters have a right to wash the stigma of criminality attached to his name.

As Justice Jackson of the US Supreme Court explained (with due apologies for citing his words repeatedly), that the apex court is not final because it is infallible, but it is infallible because it is final. There is also nothing to gainsay that courts make mistakes. The problem of wrongful convictions and miscarriage of justice plagues legal systems around the world.

But it is not the courts alone that can ensure that the outcomes produced by a legal system are just. The statutory provisions providing for procedural and substantive justice, the law enforcement agencies and state attorneys in charge of prosecution and the judges overseeing adjudication, all contribute to the quality of justice produced. And thus, all three branches of government - the executive, the judiciary and the legislature - are responsible for judicial outcomes.

Every legal system strikes a balance between demands for swiftness, accuracy, finality and fairness. Ours provides for a trial and then an appeal process all the way up to the Supreme Court. It provides for a review of the appellate decision. And once the judicial remedies have been exhausted, it allows the head of the state to issue a pardon in exceptional circumstances under Article 45 of the Constitution.

But the law at present allows the Supreme Court to review its decision only once. In Mr Bhutto’s case such review was granted and the conviction upheld. Now the court cannot bend the law to undertake a second review of the Bhutto case merely because he was a popular leader and the party that he founded, now led by his son-in-law, is currently in power.

The claims of innocence of others who believe that they might have been wrongfully convicted are no less worthy. What we therefore need is an institutionalised mechanism to address the problem of inadvertent miscarriage of justice that readjusts the existing balance between the safety and finality of judicial outcomes.

The standards of fairness employed by societies evolve over time and new scientific methodologies result in the emergence of fresh evidence. Other common law jurisdictions have employed ways to transfer the benefit of such developments to individuals who are wrongfully convicted.

In the United States some 266 individuals convicted of serious crimes have been exonerated due to DNA testing, some even rescued from the death row. Most US states now have legislations in place that allow consideration of such scientific evidence. The United Kingdom created the Criminal Cases Review Commission in 1997, in response to outrage generated by several notorious wrongful conviction cases. Since its creation, this commission has referred almost 400 cases to the UK Court of Appeal, which has reversed convictions in almost two-thirds of such cases and modified nine out of 10 sentences.

The presidential reference need not be approached as a conflict between the Zardari regime and the Supreme Court. That courts reach wrong conclusions at times is a fact of life. That is why we have an appeal process. And every time a ruling is set aside during appeal, one such error is corrected. Now despite the safety valves created through the appeal and the review process, some mistakes remain uncorrected. But just as a judge is not required to apologise every time his ruling is overturned in appeal, demands that judges of the apex court should seek forgiveness for a wrongful conviction that might have been handed down by their predecessors three decades ago, make no sense.

In his memoirs, Dr Nasim Hassan Shah (one of the four judges of the Supreme Court who upheld Bhutto’s conviction and the death sentence), states that “no accused ever had more favourable judges, and but for the retirement of one and sickness of the other, the panel was in his favour”. But then almost contradicts himself in the very next sentence by asserting that, “if Mr Bhutto was convicted by a majority, it was because it was impossible to acquit him without offering the grossest outrage to justice and common sense.” Did the justice system send Bhutto to the gallows merely because General Ziaul-Haq desired so? Was Nawaz Sharif initially awarded a death sentence in the plane hijacking case because General Musharraf desired so? If true, can such vulnerability of the justice system be plugged by beating on judges and letting the dictators off scott free?

The desire of the Zardari regime to reopen the Bhutto case can actually be an opportunity to introduce a criminal cases review commission in Pakistan through proper legislation, which can then be tasked to reassess the Bhutto verdict and hundreds of others to determine if they caused miscarriage of justice.

The Supreme Court, in response to the presidential reference, can educate the federal government on the available legislative and institutional options to introduce such a safety valve within our justice system without impinging on the separation of powers and judicial independence. The Zardari regime also has an opportunity to prove its critics wrong and use the Article 186 process constructively, as a means to strengthen our criminal justice system, as opposed to vilifying the judiciary.


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