The Supreme Court of Pakistan garnered international attention on 6 March 2024 when it gave its opinion that the former prime minister, Zulfiqar Ali Bhutto, was not given a fair trial when he was awarded the death sentence and hung in April 1979 for his alleged involvement in a murder. Seen as an act of self-accountability and justice, Human Rights Watch referred to this opinion as an “important first step toward reforming the system to provide justice for those to whom it has long been denied.” Bhutto’s grandson, Bilawal Bhutto Zardari, looked on as the Chief Justice announced the Court’s opinion, which he welcomed with visible emotion.

Following General Muhammad Zia-ul-Haq’s imposition of martial law and dissolution of the National and Provincial Assemblies on 5 July 1977, criminal cases began to be filed against the ousted prime minister, Zulfiqar Ali Bhutto. One of these was on the charge of the murder of Nawab Muhammed Ahmed Khan in 1974, the father of former politician of Bhutto’s Pakistan People’s Party (PPP), Ahmad Raza Khan Kasuri. Some have speculated that Kasuri, a critic of Bhutto, was himself the intended target of this botched assassination. After a division bench of the Lahore High Court (LHC) began the hearing of this and two other criminal complaints against Bhutto, he was arrested on 3 September 1977 in connection with the murder case. Despite being released some ten days later on bail, he was held under Martial Law Order No. 12 at the behest of Zia for alleged irregularities throughout his years in power. Accusations of corruption, violent attacks, murder, rigging the 1977 elections, treason, subversion of the constitution and illegal detentions were made against Bhutto.

The trial for the murder of Nawab Muhammed Ahmed Khan began on 11 October 1977 before a full bench of the LHC. Bhutto boycotted the proceedings early the following year after he had cast doubts over whether the LHC was acting fairly and constitutionally. Despite this, Bhutto and four others were sentenced to death for the murder on 18 March 1978. Bhutto filed an appeal against this in the Supreme Court on 25 March, and the hearing began on May 20 under Chief Justice S. Anwarul Haq. However, the Court dismissed Bhutto’s appeal on 6 February 1979, and it upheld the convictions of the LHC by a majority of four to three. One final review of this judgement was petitioned before the Supreme Court, but this was unanimously dismissed. Bhutto was hanged and died at 2.00 am at the Rawalpindi District Jail on 4 April 1979.

Bhutto was hanged without a fair trial reflects the tangible and irreversible damage that the judiciary can inflict when it is politicised and externally influenced.

After both the LHC’s decision and the dismissal of the appeal by the Supreme Court, many foreign governments, leaders and human rights groups petitioned Zia and his regime for clemency to commute Bhutto’s death sentence. Bhutto never made such a plea to Zia, who, as the head of state, had the power to accept such petitions for mercy. Bhutto directed his family to resist as well. Some foreign politicians had said that the failure to suspend Bhutto’s sentence would damage Pakistan’s reputation on the world stage, while others, particularly India, avoided clashing with the regime by referring to it as Pakistan’s “internal matter.” The regime reportedly detained Pakistanis loyal to Bhutto in advance of the hanging to avoid disorder.

On 2 April 2011, President Asif Ali Zardari approached the Supreme Court to give an opinion regarding the death sentence of the former prime minister. This had been filed under Article 186 of the constitution, a prerogative of the president to refer a question to the Supreme Court for consideration if it is considered “public importance.” Under this advisory jurisdiction, the Supreme Court delivered its verdict on 6 March 2024 under Chief Justice Qazi Faez Isa.

The judges were of the opinion that there have been cases in the judicial history of the Supreme Court that have “created a public perception that either fear or favour deterred the performance of our duty to administer justice in accordance with the law.” This is particularly relevant in the case of judges of the Supreme Court during the Zia era (1977-88), who acted in accordance with the pressures placed on them by the regime. As part of a “spirit of self-accountability,” the Supreme Court must be willing to “confront” its past mistakes. The question of law they were thus seeking to render an opinion on was “whether the requirements of due process and a fair trial were complied with in the murder trial of Mr Zulfiqar Ali Bhutto” by both the trial court at the LHC and the appellate court of the Supreme Court.

The opinion recognises that this question is of public importance by noting how political parties other than that founded by Bhutto (the PPP) have continued the inquiry and have not withdrawn Zardari’s reference, representing a “collective interest” in the matter. This, in turn, “reflects the widespread desire of the people of Pakistan” to receive an opinion from the Court on whether Bhutto received a fair trial in the Muhammad Ahmed Khan Kasuri murder case.

The Supreme Court stated that neither the proceedings of the trial by the LHC nor of the appeal by the Supreme Court met the requirements of the fundamental rights to a fair trial and due process (then articles 4 and 9 of the constitution), although the constitution does not empower the Court to set aside the judgement after the review petition was dismissed by the Court in 1979. Other questions raised in the case could not be addressed by the Court, but it does state that it will give “detailed reasons” in which it shall “identify the major constitutional and legal lapses that had occurred with respect to fair trial and due process.”

At the most fundamental human level, this ruling will bring comfort to a family that has experienced great loss as a result of its involvement in politics. Bhutto’s daughter, Benazir Bhutto, was placed under arrest while in her 20s during her father’s trial. She went on to become a two-time prime minister of Pakistan, but, tragically, she was later assassinated on 27 December 2007. Such suffering should be recognised empathetically, regardless of political affiliation, and any amelioration of that suffering welcomed.

We still await the Court’s detailed response but, in the larger scheme of things, this opinion could also pave the way for other failings and injustices to be recognised by the Supreme Court. Such a move would lend more credibility to the current Supreme Court and garner greater trust within the general public towards it as an institution, which is inherently designed to act justly in accordance with the law, not according to any external pressures or incentives. The fact that Bhutto was hanged without a fair trial reflects the tangible and irreversible damage that the judiciary can inflict when it is politicised and externally influenced. Through this recognition of historic wrongdoing by the judiciary, it is evident that it is committed to preventing such miscarriages of justice from happening again by maintaining its integrity and independence.