PM to wait for IHC’s decision in Musharraf case

ISLAMABAD: Rejecting all the options proposed by the Law Ministry in the Musharraf case, Prime Minister Nawaz Sharif has decided to wait for the outcome of the case filed in the Islamabad High Court (IHC) against the Special Court’s decision in the high treason case.
Informed sources said that all the options, including de-notification of the Special Court, challenging its decision in the Supreme Court or a high court by the government, sending a reference on the subject to the apex court, implementing the Special Court’s decision in letter and spirit or withdrawal of high-treason case, have been rejected by the prime minister.
In view of the difficulties faced by the government from “Musharraf loyalists” in the “Musharraf loyalists” in the military establishment during the last one year, the government decided to adopt what a source termed the policy of “preservative mechanism” in this particular case.
The source said that despite difficulties and complications developed following the “surprising” order of the Special Court, the prime minister is not inclined to withdraw the case of high treason against Musharraf. The premier has been assured that the order of the Special Court, challenged in the IHC by the three accomplices as found by the Special Court, could not withstand judicial scrutiny of the independent judiciary.
The premier, the sources said, acceded to the proposal that the government should wait for the outcome of the IHC case challenging the Special Court order. Justice (R) Abdul Hameed Dogar, former prime minister Shaukat Aziz and former law minister Zahid Hamid had challenged the Special Court order of including the three as Musharraf’s abettors in the hi-treason case.
The outcome of the case, it is said, would help government to devise its strategy in Musharraf’s trial.The Law Ministry had informed Prime Minister Nawaz Sharif about over two dozen legal infirmities, constitutional violations and factual errors in the Special Court’s interim order and suggested a few options including the disbandment of the court.
The prime minister was advised that in case the government does not go for appeal in the apex court, avoid filing a writ in high court or also ignore sending presidential reference on the matter to the apex court, it could think of withdrawing the complaint and disband the court without any further recourse to it and take the Parliament into confidence.
The Law Ministry’s advice also contained the option of filing an amended complaint as directed by the court but before another Special Court to be constituted. In that case, the Law Ministry said, the Act would oblige a de-novo joint trial.
But the Law Ministry had warned that such an option would raise more questions and concerns on the state of Special Court processes than what were being intended to be addressed. The Law Ministry added that it might virtually render redundant the entire proceedings of last one year in Musharraf case. “In that eventuality, there would be no guarantee that even if additional accused may submit to the court jurisdiction, any of the other accused might drag more public office holders to implicate persons at will,” the premier was told.
About the other available options, the Law Ministry summary said, there was no clear procedure laid down in the 1976 Act to challenge such interim orders. It suggested that it would be appropriate that the decision at the most might be challenged under Article 199 of the Constitution in writ jurisdiction of the high court against exercising jurisdiction not vested in Special Court and failure to exercise statutory jurisdiction constitute valid grounds in view of violation of Act XVII of 1976 mandate read with Article 4 of Constitution and Code of Conduct of Judges. This writ was the preferred option for the Law Ministry.
Regarding the option of appeal in the Supreme Court, the Law Ministry said that any party aggrieved by the final judgment of the Special Court may prefer appeal to the Supreme Court within 30 days of the passing of the judgment. The ministry added that the decision of the Special Court to file the amended complaint without reinvestigation of the case by adjoining of certain abettors did not appear to be final judgment on its face but it might be argued otherwise. So appeal to the SC might not be the first or preferred option, the Law Ministry had advised the premier.
The Law Ministry was also of the view that a reference to Supreme Court could also be considered (Article 186) to seek clarification on the powers of the Special Court on certain matter including as whether it can add accused persons. However, the Law Ministry advised the PM not to go for this option.It added that an Ordinance can be issued to clarify the powers of the special courts with effect from 1976 to nullify the “illegal” and “unlawful” order dated 21-11-2014.