ISLAMABAD: The law ministry had a detailed study of General (retd) Musharraf’s request to get his name removed from the ECL, and reached the conclusion that such a request could not be favourably entertained by the government because of multiple reasons.
Not only that a Supreme Court direction is a major hurdle in letting Musharraf go out of Pakistan, such a concession offered to Musharraf would be in violation of the fundamental rights, besides being against the public interest.
According to sources, the major hurdle in the removal of Musharraf’s name from the ECL is the April 8th, 2013 direction of the Supreme Court in the Moulvi Iqbal Haider vs. Federation of Pakistan case, which reads as: “The Counsel representing the petitioners particularly Mr A K Dogar and Mr Hamid Khan have submitted that the respondent General Retd Pervaiz Musharraf be taken into custody to ensure that he remains available within the country for the purpose of trial under Article 6 of the Constitution read with the provisions of High Treason (Punishment) Act, 1973. We are, however, of the opinion that in the first instance, notice of these petitions be served on the said respondent for tomorrow. The Inspector General of Police, Islamabad, and, if necessary, the Inspectors General of Police in the provinces, shall ensure service on the aforesaid respondent. The Secretary, Interior shall also make sure that if the name of the aforesaid respondent General Retd. Pervaiz Musharraf is not already on the Exit Control List, this shall be done forthwith and a compliance report of this order shall be submitted in Court during the course of the day. The Federation and all its functionaries shall also ensure that the respondent does not move out of the jurisdiction of Pakistan until this order is varied/modified.”
Although, on July 3rd, 2013, the SC disposed of the above-mentioned petition, the law ministry believes that the federal government cannot remove Musharraf’s name from the ECL unless the order dated April 8th, 2013 is recalled, varied or modified by the apex court.
In the December 2013 ECL case of Musharraf, the Sindh High Court was told by the then Attorney General Munir A Malik that the Supreme Court had directed that in case Musharraf’s name was not on the ECL, it should be placed on the ECL. Following the arguments of both the sides, the SHC rejected Musharraf’s plea to get his name removed from the ECL while explicitly mentioning the reference made by the attorney general.
According to the law ministry’s advice, recently submitted to the government in the wake of order dated April 8th, 2013 passed by the SC Musharraf’s name cannot be removed for the following reasons:
a) The SC has specifically ordered, “The Federation and all its functionaries shall also ensure that the respondent does not move out of the jurisdiction of Pakistan until this order is varied/modified.”
b) Despite the disposal of relevant petitions, the order dated April 8th, 2013 still holds the field and has binding effect as also argued by the attorney general and accepted by the SHC.
c) Gen (retd) 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 the federal government to ensure his appearance and 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.
d) Gen (retd) Musharraf is also being tried for the offence of High Treason under Article 6 of the Constitution before the Special Court where in the course of 36 hearings his attendance could be produced 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 grave and serious prejudice to the ends of justice by impeding the trials.
e) Sending him 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.
f) 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 litigations costing the public exchequer.
g) Furthermore, it has been reported in the press that the government has very graciously offered him air ambulance, etc., to bring his mother to her homeland and to provide best medical facilities.
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