The federal government’s stand on proceeding under Article 6 of the Constitution proved something of a surprise when it was revealed to the Supreme Court on Monday, that the caretakers would not take the steps necessary for prosecuting him when the Attorney General stated as much to the three-member Supreme Court bench headed by Mr Justice Jawad S. Khwaja. The Attorney General told the court that the government, being a caretaker, would not take steps which exceeded its mandate, and any step which is not reversible by the elected government. The caretakers have also taken the view that there was no order for the setting up of the special court that could try the offence under the High Treason Act. That the federal government took its time about giving this statement indicates that there was pressure at work, though it would be a sad event if any individual was given special treatment because of his status, and because he was a former President and an ex-COAS. As the proceedings have shown, the federal government has the power of going ahead with the prosecution. However, if it decided not to prosecute, or if it decided to stop a prosecution already launched, nothing could stop it except a regard for public opinion. There might apparently be no urgency in the matter, as the Attorney General averred, but there is no statutory restriction on a caretaker government, which must carry on all the functions of the state. While the conduct of elections is its primary duty, it is also in place so that the state does not cease functioning. It must particularly ensure that all court orders are obeyed and enforced.
That would mean ensuring obedience to the orders allowing General Musharraf access to his lawyers. Just because he has been confined to his farmhouse, which has been declared a sub-jail, does not mean he is to be denied the facilities normally allowed to a prisoner, access to his lawyers being one of them. Another needless irritant is his access to his nonagenarian mother. True, she or her illness should not be used as an excuse to whisk him away out of the jurisdiction of the Pakistani courts, but his rights as a son are accepted in the official rights given to him as a prisoner. The previous government may owe him such benefits as the NRO, and his giving up the Presidency so that the incumbent might occupy it, but the caretakers are under no such obligation, and should proceed strictly in accordance with law. If the military takeover of 1999 means that General Musharraf abrogated the constitution and grievously overstepped his constitutionally established role, he must be tried. If he is not, there is no rule of law in Pakistan.