Matiullah Jan
ISLAMABAD - At least for the record it were the interior ministry officials who had warned the government that allowing Musharraf to leave Pakistan through an “executive order” would create doubts about its intentions.
“Allowing him [Musharraf] to leave the country by an executive order may raise serious legal questions about the role and intentions of the executive branch leading to multiple litigation costing public exchequer,” warned officials in a communication obtained by The Nation.
The fact of political governments at times taking decision first and then making bureaucrats prepare recommendations accordingly is not a secret in Pakistan. Ostensibly this too was a one sided communication devoid of other options with respective implications for the minister to choose from. However, as per the documents, eight objections and points raised by interior ministry officials seem to be making a significant case against Musharraf’s request.
The interior ministry officials’ objections were raised on two requests by the former military ruler that he be allowed to proceed abroad to meet his ailing mother and get himself treated abroad. The requests to the government came after a trial court indicted Musharraf on treason charges. The court abstained from deciding on his request to go abroad saying only the government could do it. However the judge declared that Musharraf being not in custody or required for personal hearing could not be restricted in his movements. With these favourable observations from trial court Musharraf approached the interior ministry which rejected his requests referring to a Supreme Court order in a case which was finally disposed off.
“The Supreme Court has specifically ordered ‘The Federation and all its functionaries shall also ensure that the respondents do not move out of the jurisdiction of Pakistan until this order is varied/modified,” says an official note as first of the eight reasons to reject Musharraf’s request.
Lawyers have different opinions over validity of the interim restraining order of apex court against Musharraf and if the same had merged into the main judgement which disposed off the appeals and therefore no more in field.
The second objection to Musharraf’s request categorically clarifies the government’s position on the above. “Despite the disposal of C.P. No. 2255/2010 and the connected matters vide order dated 03.07.2013, the order dated 08.04.2013 passed by the Supreme Court of Pakistan still holds the field and has binding effect as also argued by the learned Attorney General and accepted by the Sindh High Court. The Supreme Court order dated 08.04.2013 stated, “The federation and all its functionaries shall also ensure that the respondent [Musharraf] does not move out of the jurisdiction of Pakistan until this order is varied/modified.”
In the 3rd objection the official note draws attention to various pending criminal cases against Musharraf. “The Gen. (R) Pervez Musharraf is facing multiple charges in various courts of different federating units. In any case, whether he is on bail or otherwise, it remains a legal obligation of federal government acting through ministry of interior to ensure his appearance or production before the concerned courts in order to fulfil the mandate of Article 9, 10 and 10A of the constitution. His absence from Pakistan may gravely prejudice the rights of private complainants who have reposed their confidence in the judicial system of Pakistan,” says the note. The trial court however in its post indictment observations said Musharraf being on bail in various cases and not required to be present in treason trial had the fundamental right to movement and travel.
The fourth objection raised pointed out that it was imperative that Musharraf remained in the country to face treason trial. “He is also being tried for the offence of high treason under Article 6 of the Constitution before the Special Court constituted under Act XVII of 1976, where in the course of 36 hearings his attendance could be procured only twice for one reason or the other. Prima facie it appears that the accused may be avoiding trial. In the interest of justice and to fulfil a constitutional obligation to take the trial to its logical conclusion and to ensure substantial compliance of Article 9, 10 and 10A of the constitution it is imperative that he remains present in the country. His absence from Pakistan will cause a grave and serious prejudice to the ends of justice by impeding the trial.
Fifth objection pertained to possible violation of Article 25 of the constitution requiring equal treatment under the law to all citizens. “Sending him [Musharraf] abroad will amount to creating an exception which will impinge upon the fundamental right of equal treatment guaranteed by Article 25 to all other persons facing trials and would be against public interest.”
Sixth reason for recommending refusal to Musharraf’s request was a possible legal implication. “Allowing him to leave the country by an executive order may raise serious legal questions about the role and intentions of the executive branch leading to multiple litigation costing public exchequer.”
The seventh point read, “Furthermore it has been reported in the press that the government has very graciously offered to him Air Ambulance etc. to bring his mother to her homeland and to provide best medical facilities.”
The last and eighth argument by the interior ministry official recommending not to remove Musharraf’s name from Exit Control List is that Musharraf “has not attached with the instant applications any proof of his disabling ailment which is not treatable in Pakistan.”
On the basis of above arguments and recommendations by an official of level of Deputy Secretary, the official of the level of Joint Secretary concluded, “Based upon the above grounds it is proposed that name of Gen (R) Pervez Musharraf may not be deleted from ECL in the public interest. A draft order is placed below for approval before issue rejecting the request for removal from ECL. It is proposed that advice of the law division may also be obtained.”
The law secretary Barrister Zafarullah Khan in his note writes, “The law division endorses the views/opinion expressed in the eight points.”