Setting right a historic wrong -by Fauzia Wahab

The writer is a former information secretary of the PPP and has been an MNA since 2002.

The Supreme Court of Pakistan under his Lordship Mr Justice Iftikhar Chaudhry, has taken upon itself the mantle of purging the country of all its ills and all its impurities. It has and rightly so, in a plethora of its judgments pledged to uphold the Constitution at all times to come. In one of its recent judgments, Supreme Court wrote: “Good or bad fortunes of a nation depends on three factors, its Constitution, the way the constitution is made to work and the respect it inspires. The Constitution is a sacrosanct document which establishes various institutional apparatus of the government, defines the relationship between the individual and the state, between the federation and its federating units and various organisation of the state. The judiciary is under oath to preserve and defend the Constitution under the rule of law.”

During the lawyers’ movement, 20 PPP workers sacrificed their lives when a bomb exploded on July 17, 2007, at an Islamabad reception being organised in honour of the deposed chief justice. This happened minutes before his arrival.

The restoration of the once-reinstated-then-deposed chief justice on March 16, 2009, was welcomed by all, particularly civil society and the media, and most people were of the view that it would usher the country into a new era of judicial independence and impartiality. One of the various challenges that the judiciary took upon itself after resuming office was to set the record straight about the actions of November 3, 2007, of then General Pervez Musharraf which were validated by the Supreme Court through its judgment in the Iqbal Tikka case. It was of critical importance that this judgment was nullified for a number of reasons including strengthening the Constitution but also for the reason that Justice Chaudhry had always remained the Chief Justice and was never deposed.

On another occasion the chief justice had stated that decisions like the one in the Tikka Iqbal case or the Maulvi Tameezuddin case came due to the judiciary’s own fault. These were published in various newspapers during the hearing of Sindh High Court Bar Association vs Federation of Pakistan case. This particular case was decided by the most revered Supreme Court on July 31, 2009. The impact of this judgment was twofold. Firstly, it removed 110 Honourable Judges of the superior courts but in effect also overturned the decision in the Iqbal Tikka case. Citing the principle of natural justice “no person shall be the judge in his own cause” some critiques have categorised this judgment as self-serving since the most respected chief justice was a beneficiary of this case. However, for people like me, it was a clear sign that my beloved Pakistan and democracy was free from all adventurists.

This decision also gave hope to the PPP which decided to seek redress regarding a grave error in the annals of history committed by the superior courts to appease and please former military ruler General Ziaul Haq, namely in the case of Shaheed Zulfikar Ali Bhutto, sentenced to death in a fabricated case. If this was not enough to show miscarriage of justice, Mr Justice Nasim Hassan Shah who was a member of the bench of the Supreme Court that sentenced Zulfikar Ali Bhutto to death admitted in a TV talk show that the decision was made under duress from General Zia and accepted that the decision was essentially wrong.

In this regard, in April 2011, a presidential reference under Article 186 was filed to re-open the case to put right a historic wrong and thereby vindicate the position of the founding chairman of the PPP. This reference was sent on the understanding that principles are absolute. If the principle is to uphold law by which one wrong committed by the Supreme Court can be overturned (in the Iqbal Tikka case) then the same principle can be used for reviewing another wrong committed by the Supreme Court.

Published in The Express Tribune, January 16th, 2012.



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