Why is Pakistan’s top court probing the 1979 hanging of former PM Bhutto?

Islamabad, Pakistan — A nine-member bench of Pakistan’s top court will on December 12 hear a plea to review a 44-year-old death sentence, controversially awarded to former Prime Minister Zulfikar Ali Bhutto, two months before national elections.

In June 2011, Asif Ali Zardari, Bhutto’s son-in-law, and then-president of the country has filed what is known as a presidential reference with the Supreme Court. It sought a review of the death penalty, awarded 4-3 by a seven-member Supreme Court bench in February 1979, which was later implemented when Bhutto was hanged in April 1979.

It remains the only instance in Pakistan’s history that a former prime minister of the country was hanged.

Here is what you need to know about the Bhutto death sentence, the reference that was filed, why this case is being heard now, and why it all matters.

Who was Bhutto and why was he awarded death sentence?

Zulfikar Ali Bhutto was a Pakistani politician who became country’s fourth president in December 1971, days after it lost a war to India and its eastern part gained independence to become Bangladesh.

One of the most popular leaders of the country, Bhutto, founder of the Pakistan People’s Party (PPP), became the ninth prime minister of Pakistan two years later in August 1973.

However, after a turbulent four-year tenure, Bhutto was removed from power when his handpicked army chief, General Zia-ul Haq carried out a military coup in July 1977 to overthrow the government.

Two months later, the deposed prime minister was arrested on accusations of being the mastermind behind the murder of a political rival. In a controversial trial that many observers and legal experts declared flawed, he was declared guilty of the charges and awarded a death sentence in March 1978.

Subsequently, Bhutto’s appeal in the Supreme Court in front of seven-member bench was dismissed with a 4-3 verdict against him in February 1979, and two months later he was hanged in Rawalpindi.

Why was the case reopened in 2011?

Legal experts have over the years questioned the trial both in Lahore High Court as well as Supreme Court, and raised numerous questions on the conduct and procedural flaws which took place in the high-profile case adjudicated under martial law. In fact, the apex court judgement from February 1979 on Bhutto’s death penalty has never been cited again as a precedent in any subsequent case in Pakistan’s judicial history.

After the passage of more than three decades, during which Bhutto’s daughter Benazir, herself a two-time prime minister of the country, was shot dead during a political rally in 2007, Zardari filed a reference in the Supreme Court seeking a review of the death penalty in June 2011.

Raising five legal questions, the reference was intended to seek the opinion of an 11-member bench of the top court on the legality of the 1979 verdict. However, only six hearings were conducted, the last of which took place in November 2012. The Supreme Court bench changed, and with that, the hearings stopped.

Why has Supreme Court taken up the reference now?

Analysts and legal observers have said that the decision to take up the presidential reference now is not necessarily related to the general elections, scheduled for February 2023. Instead, some have argued it is more to do with the personal bent of the top judges in the court, who may see it as an opportunity to undo the “sins of the past”.

Abid Saqi, a Lahore-based senior lawyer says the February 1979 verdict was widely seen globally as an instance of “judicial murder” — where law was pressed into the service of a military dictator.

“Our country’s judiciary has much to atone for and there are a lot of black spots in its history, so this reference provides it an opportunity to reverse a decision that was never made independently,” he told Al Jazeera.

Current Chief Justice Qazi Faez Isa has on numerous occasions publicly expressed condemnation of the 1979 judgement, so the court’s decision isn’t surprising, Saqi said.

“If the court goes on to reverse it, and issue a public apology on an institutional level, it will be a good thing,” he added.

What could be the significance of the decision to hear the reference?

Traditionally, the judiciary has been “part and parcel of undemocratic steps taken by the military establishment” in the country, said political analyst Mehmal Sarfraz.

“Thus, it is important for the judiciary to rectify their past mistakes officially,” she told Al Jazeera.

“From Bhutto’s judicial murder to throwing out elected prime ministers on frivolous charges, the judiciary’s decisions have had a long-lasting impact on our political landscape.”

With more than three decades of the military’s direct rule out of Pakistan’s 75 years of existence, and an oversized role in politics that makes the military appear as kingmaker, lawyer Saqi said a potential reversal of the verdict could set an important precedent.

“Bhutto is not coming back, we know that. But such references and cases are political in nature and more than just the question of legality, it is also a matter of legitimacy,” he said. “If the 1979 verdict is reversed, it could restore the sanctity of lawbooks, and serve as precedent as far as military intervention in political matters is concerned.”

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