Four basic facts in Musharraf case

ISLAMABAD: Four basic facts in the Musharraf treason case are very important to set the record straight. 

Neither did the Sindh High Court (SHC) nor the Supreme Court (SC) ever allow General (retd) Musharraf to fly abroad, rather it was the apex court that dismissed the former dictator’s latest application (CMA No1099 of 2016) on this count in its March 16, 2016 short order.

In his press conference, Ch Nisar said neither the PPP initiated the treason trial of Gen (retd) Musharraf during its five-year tenure nor did it stop him from going abroad. Nisar added that it was only the PML-N which initiated Gen Musharraf’s . Nisar, however, added, “Though, we did it after the Supreme Court ordered us.” 

As a matter of fact, the November 3, 2007 acts of the then Chief of Army Staff General Pervez Musharraf were declared unconstitutional by the apex court after restoration of Chief Justice Iftikhar Muhammad Chaudhry on July 31, 2009 and at that time Musharraf was abroad. 

The superior judiciary, as a matter of fact, passed two historic judgments which clearly blocked Musharraf’s plans to fly abroad despite federal government’s utmost efforts to clear hurdles in his way. Supreme Court in 2013 ordered putting Musharraf’s name on ECL till the time any court of law would take up the issue. This was an interim order and lost its force the moment Musharraf’s case was taken up by lower courts and the special court. Musharraf moved Sindh High Court (SHC) to get his name removed from ECL and federal government stated before SHC that it hadn’t put Musharraf name on ECL. “Musharraf’s name is on ECL only because of a 2013 Supreme Court judgment,” the federation had informed the SHC, a statement which had raised eyebrows of many legal wizards who knew that 2013 apex court order was an interim order and had no effect in 2014. Despite SHC’s queries, federal government avoided providing any reasons of putting Musharraf’s name on ECL or providing evidences against him and merely relied on 2013 SC’s interim orders which had no legal force at that time. This left SHC with no option but to accept Musharraf’s petition as the opponent (federation) was not opposing. 

However, SHC itself granted a 15-day stay order against its own judgment giving federal government a chance to move an appeal against its decision. This left federal government with no option but to move an appeal in apex court against SHC decision. Now episode of arguments made in SHC was repeated in Supreme Court. However, the political motive of the federal government was very clear in arguments of the attorney general. Five-member Supreme Court bench repeatedly pressed the federal government to come up with a clear stance on the issue and elaborate reasons and present evidences because of which his name should continue to exist on ECL. However, , PML-N government’s attorney general Salman Aslam Butt remained suick to his stance that Musharraf’s name was on the ECL merely because of the apex court orders. He went to the extent of stating, “Federal government has not put Musharraf on ECL on its own”. It was obvious that if federal government was not willing to place Musharraf’s name on the ECL, Supreme Court could not press the government to do so as both parties in the case were basically having the same position. 

Technically and legally the SHC as well as the Supreme Court had not to decide putting or removing Musharraf’s name from ECL, rather the judges were to decide if the 2013 SC order, on which federal government was relying, was an interim order or a final order. That was clearly an interim order and the line of arguments by federation’s counsel clearly established that government was trying to get an order in favour of Musharraf but in a way that it could not be blamed for Musharraf’s going abroad. 

However, the apex court Wednesday judgement meant that it was only dismissing government’s appeal against SHC judgment and this order will have no effect on the government’s discretion to keep Gen Musharraf in custody or even putting restrictions on his movement because of treason trial against him under Article 6. A reading of the verdict also highlights the federal government’s act of not presenting any reasons or evidences for keeping Musharraf’s name on ECL. Musharraf has to appear before the special court trying him under treason charges on March 31, 2016. Musharraf’s arrest warrants have been issued in another case. 

Chaudhry Nisar in his Thursday’s press conference also said he asked the attorney general on Wednesday that he must have apprised the apex court about federal government’s new policy on ECL under which any person could be placed on ECL only after court orders. 

However, even according to the new policy, the condition of a court order for putting any person on ECL is not a must. In addition to the court orders, according to the new policy, headquarters of the defence organisations as well as FIA and NAB can recommend to the interior ministry to put somebody’s name on ECL after verifying certain facts and on basis of defined rules. Interestingly, interior ministry is shying away to put new policy on ECL on its website.

Basically, the plan of sending Musharraf abroad after taking a judgment from superior judiciary through a “friendly defence in the courtroom” fired back two times because the superior judiciary penned down two verdicts clearly not allowing Musharraf to fly abroad and instead pushing federal government to try Musharraf in treason case under Article 6 with full sincerity. 

The only way out for Musharraf in the treason case was to make things confused by adding more and more names in this trial under Article 6 of the Constitution. These names included Justice Abdul Hameed Dogar, former prime minister Shaukat Aziz, Zahid Hamid, former army chief General Ashfaq Parvez Kayani etc. However, it was the Supreme Court which penned down a historic verdict only a few days back and held in categorical terms that as Gen Musharraf had imposed emergency and subverted the Constitution as the Chief of the Army Staff so only he could be held responsible and tried under Article 6 of the Constitution. This left no room for Gen Musharraf to escape from high treason case and its punishment. Had apex court been lenient towards Musharraf it would never have passed such a clear judgment merely two weeks back on February 26, 2016.