SC overrules SHC order, Musharraf to stay on ECL

ISLAMABAD: The Supreme Court of Pakistan on Monday overruled the Sindh High Court order to remove former President Pervez Musharraf's name from the Exit Control List (ECL) barring him from leaving the country.

The former president had moved the Sindh High Court to remove his name so he may travel freely. The High court ruled that Musharraf's name be removed albeit the court suspended the operation of its order for fifteen days during which time the government could appeal before the apex court.

In its appeal before the Supreme Court, the federal government maintained that Musharraf is the only accused in the treason case and there are other pending cases against him in courts, thus his name should not be removed from the ECL. The appeal stated that Musharraf should not be allowed to leave the country until cases against him are decided.

Following today's ruling, the former president's name will remain on the ECL.

Govt will go to SC in Musharraf ECL case

ISLAMABAD: The federal government would go into appeal in the Supreme Court against the SHC’s decision in order to prevent the former dictator General (retd) Pervez Musharraf from going abroad during his trial under the most serious charge of high treason.
Sources told The News that the decision to this respect was already taken recently by the government when it was discussed that the SHC might allow Musharraf to go abroad.In a high level meeting of top ruling party leaders, it was decided that the governmentdecided that the government would challenge the decision if the SHC directed to remove Musharraf’s name from the ECL.

It is known to all now that the military establishment wants Musharraf’s safe exit from Pakistan but the government believes that any such concession offered to the former dictator would serve as a serious jolt to rule of law in Pakistan.

The government believes that not only the Supreme Court direction is a major hurdle in letting Musharraf go out of Pakistan, such a concession if offered to Musharraf would be in violation of the fundamental rights besides being against public interest.

The Sindh High Court (SHC) on Thursday ordered the removal of former military ruler Pervez Musharraf´s name from the Exit Control List (ECL), however the court has suspended the operation of its order for 15 days. During this 15-day period, the government may appeal before the Supreme Court against the order. If the government does not appeal in the stipulated time, Musharraf will be free to travel abroad.

In its recent advice to the government, the law ministry besides referring to the 2013 SC direction of putting Musharraf’s name on the ECL referred to certain other factors impeding Musharraf’s leaving Pakistan.

It was said that Gen (R) 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 to ensure his appearance and production before the concerned courts in order to fulfill the mandate of Articles 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, the law ministry advice said.

It added that Musharraf is also begin 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 ensured 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 fulfill a constitutional obligation to take the trial to its logical conclusion and to ensure substantial compliance of Articles 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,” the ministry said.

The law ministry was also of the view that 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.

SHC takes Musharraf’s name off ECL, allows 15 days for appeal

 

KARACHI: The Sindh High Court on Thursday struck down former president General (retd) Pervez Musharraf’s name from the Exit Control List (ECL), observing that mere pendency of civil or criminal cases against a citizen was no ground to deny him the fundamental right of travelling within or outside the country.
However, the court suspended the operation of judgment for 15 days observing that since the court order was self-executory, therefore the respondents, if they so desire, may file an appeal with the Supreme Court.

A division bench of the court headed by Justice Mohammad Ali Mazhar observed in his detailed judgment on the former president’s petition that it was the fundamental right of a citizen to travel abroad and the abridgement of that right be tested on the touchstone of guaranteed under Article 2-A, 4, 9, 15 and 25 of the Constitution.

The court observed that no reason was communicated to the petitioner as to why his name had been placed on the ECL whereas a plethora of judgments were available in which such type of actions were considered arbitrary, unjust and violative of fundamental rights.

The court observed that it was also a well-settled law that mere pendency of civil or criminal cases against a citizen was no ground to deny him the fundamental right of traveling within or outside Pakistan. And after granting bail by the competent court the custody is regulated by such court of law, it further observed.

“Merely on apprehension that the petitioner will not return to Pakistan is no ground for depriving him of exercising his fundamental right,” the court observed in judgment.“No plea was taken that the reasons were not assigned in the public interest rather we are of the view that in the cases of high treason the public interest at large is involved to know the reasons for prosecuting the accused of high treason,” the court observed.

Brushing aside the apprehension of Attorney General for Pakistan who argued that if Musharraf was allowed to leave the country he will not return like Husain Haqqani, the court observed that the courts of the country were not helpless even in past and there were various examples in which the apex court of the country passed orders to ensure the custody of accused persons so that they may be tried such as the cases of Sharukh Jatoi and Tauqir Sadiq etc.

The court observed that the attorney general although quoted the case of Husain Haqqani, he did not point out any efforts made by the federation to ensure his presence in the country.The court observed that the petitioner was also involved in four other criminal cases in which extradition would not be denied in any treaty with any foreign country.

“If in any case, the accused has absconded, the law is not helpless but a procedure to deal with such situation is already provided under the Criminal Procedure Code and other relevant laws,” the court observed.

Regarding the Supreme Court’s interim order for placement of Musharraf’s name on the ECL, the court observed that the order containing the direction for putting the name of General (R) Pervez Musharraf on the ECL was of an interim nature which was merged in the final order and it does not survive after the final adjudication.

The court observed that the Supreme Court did not extend or continue the placement of Musharraf’s name on the ECL may be for the reasons that the federal government had already placed his name on ECL prior to the court direction on April 5, 2013.

The court observed that it was a well-settled principle that once a final order was passed, all earlier interim orders merge into the final order and the interims orders cease to exist.Attorney General for Pakistan Salman Butt had earlier argued before the court that the government could not take the risk by allowing Musharraf, who is facing high treason charges, to travel abroad unless the Supreme Court’s order regarding embargo on its traveling outside the country was modified or vacated. The AGP submitted that high treason was a political crime and once Musharraf was allowed to travel abroad he could not be brought back due to relaxed extradition laws in the other countries on such crime. He said if Musharraf moved abroad high treason proceedings would come to a standstill for an indefinite period.

Musharraf’s counsel Farogh Naseem submitted that the Special Court had not placed any restriction on the petitioner’s traveling abroad and his client should be allowed to travel abroad on medical grounds as the federal law officer had not filed any rebuttal on the medical report of the petitioner in which it stated that the petitioner had fracture in the vertebra and recommended that either surgery be performed in Dubai, North America or in Europe.

He said the attorney general himself admitted that high treason was a political crime and thus mala fide on part of the government could not be ruled out. He submitted that equal treatment may be given to every citizen either he is a petitioner or any other person while deciding the cases pertaining to restriction on traveling abroad.

Musharraf through his attorney Brigadier (R) Akhtar Zamin submitted in the petition that the federal government imposed ban on his traveling abroad on April 5, 2013 without giving any justified reason for placement of his name on the ECL.

SHC orders removal of Musharraf's name from ECL

KARACHI: The Sindh High Court (SHC) on Thursday ordered the removal of former military ruler Pervez Musharraf´s name from the Exit Control List (ECL), however the court has suspended the operation of its order for 15 days.

During this 15 day period, the government may appeal before the Supreme Court against the order. If the government does not appeal in the stipulated time, Musharraf will be free to travel.

A two-judge bench of the SHC comprising Justice Muhammad Ali Mazhar and Justice Shahnawaz Tariq delivered the verdict on the petition against the placement of Musharraf’s name on the ECL.

"The court has allowed our appeal and ordered to strike down Musharraf´s name from the Exit Control List. The order will be executed after 15 days," said Musharraf’s lawyer Farogh Naseem.

The delayed execution of the order "will give time to the government to appeal in a superior court if they so desire," he added.

The court had reserved its order on May 29 after the defending counsel Barrister Dr Farogh Naseem, Attorney General of Pakistan Salman Aslam Butt and advocate Maulvi Iqbal Haider, who became a party in the case in favour of keeping Musharraf’s name in the ECL had completed their arguments.

It may be mentioned that the federal government had opposed the petition of the former president and contended that his name had been placed in the ECL on the direction of the Supreme Court in high treason case and high court lacks the jurisdiction to entertain and adjudicate the matter.

Musharraf, 70, flew to Karachi in April to undergo medical tests. He has said he wants the travel ban lifted so he can visit his sick mother in Dubai, but many in Pakistan see it as a ruse to flee the country and avoid the litany of criminal cases against him dating back to his 1999-2008 tenure.

Musharraf was indicted for treason in March over his imposition of emergency rule in 2007 -- a case seen as a test of civilian authority in a country long dominated by the military. He also faces several murder cases.

Legal experts’ remarks on removal of Musharraf name from ECL

KARACHI: The Supreme Court of Pakistan could extend the suspension of Sindh High Court orders for 15 more days in which the Sindh High Court ordered lifting travel ban on former military dictator Pervez Musharraf, legal experts said on Thursday.

The SHC while directing the government to lift travel ban on Musharraf further ruled that implementation of its order—removal of accused name from the Exit Control List (ECL)--- be suspended for 15-days so that the government may file appeal before the apex court.

“It seems the ball is now in the court of Supreme Court as it has to make a final decision,” says Justice (retd) Wajihuddin, former judge of the top court.

Eminent lawyer SM Zafar said that the Musharraf’s path to travel abroad will be clear if the government didn’t move the apex court against SHC decision.

Justice (retd) Tariq Mehmood said that although the reasons that were stated to put Musharraf on ECL were not substantial, the issue is now once again in the government’s hand.

Another law expert Babar Sattar said that the government will have to make a legal and political decision to resolve the imminent issue.

AG says govt cannot risk removing Musharraf’s name from ECL

KARACHI: The Sindh High Court heard a petition pertaining to removing the name of former President General (retd) Pervez Musharraf from the Exit Control List (ECL).

The petition was heard by a two member bench headed by Justice Muhammad Ali Mazhar.

In his arguments, Attorney General Salman Aslam Butt said the government could not risk removing the name of the former president from the ECL.

The SHC has reserved its decision on removing Musharraf’s name from the ECL till May 31 stating that the lawyers of the parties should submit their documents in the court.

Why Musharraf’s name can’t be removed from ECL

 

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.

Govt rejects Musharraf’s ECL plea

ISLAMABAD: The Interior Ministry has rejected Pervez Musharraf’s application seeking removal of his name from the Exit Control List (ECL).

The former military ruler had filed the application with the interior ministry after the Special Court said the government had the authority to allow him to travel abroad.

Mushararf’s spokesman, Rashid Qureshi claimed that the letter from the Initerior Ministry has not been received.

Musharraf had filed petitions praying the court to allow him to travel abroad for medical treatment and to visit his ailing mother.

Earlier on Wednesday, Railways Minister and PML-N leader Khawaja Saad Rafique advised Musharraf to ‘show courage, be a man and shun the acting.’