The Supreme Court dismissed on Wednesday a government appeal against the removal of Pervez Musharraf’s name from the Exit Control List (ECL) – a move that could let the former strongman leave the country while awaiting trial for treason.
Musharraf wants to go abroad for urgent spinal treatment which is not available in Pakistan. He was placed on the ECL in 2013 after he returned to the country in an unsuccessful attempt to lead his All Pakistan Muslim League (APML) party in the general elections.
The former military ruler petitioned the Sindh High Court (SHC) against the move which directed the government on June 12, 2014 to lift the travel ban on him. The government didn’t remove Musharraf’s name from ECL and instead appealed the SHC ruling in the apex court.
A few days later on June 23, the top court suspended the SHC judgment and allowed the government to appeal. The hearing was adjourned, and the matter remained pending since.
After a two-year hiatus, a five-judge bench of the apex court – headed by Chief Justice Anwar Zaheer Jamali – took up the case on Wednesday and dismissed the government’s appeal. But the bench said the government or a separate court could technically pass a fresh travel ban if they provided valid reasons.
“This order will not preclude the federation of Pakistan and the Special Court, which is seized of the proceedings under Article 6 of Constitution against Pervez Musharraf, from passing legal order to regulate his custody and restricting his movement,” reads Wednesday’s order.
Chaudhry Faisal Hussain, one of Musharraf’s attorneys, welcomed the verdict. “Now, there is no restriction on Musharraf to travel abroad,” he told The Express Tribune. “It is between him and his doctor now where he wants to be treated.”
He added that if the government wanted to restrict his client’s movement, then it would have to come up with ‘solid reasons’. “Pendency of cases against any individual cannot restrict him or her from traveling abroad.”
A member of the prosecution team said the government could approach the Special Court, which is trying Musharraf for high treason, for restricting his movement. The three-judge court is trying Musharraf for abrogating the Constitution.
During Wednesday’s proceedings, Attorney General for Pakistan (AGP) Salman Aslam Butt argued that Musharraf was put on the ECL due to an April 8, 2013 order of the top court in a separate case. “Our stand is that the interim order due to which his [Musharraf’s] name was placed on the ECL still holds,” he said, adding that it was an independent order.
In the April 8 order, the Supreme Court had directed the federation and all its functionaries “to ensure Pervez Musharraf does not leave the jurisdiction of Pakistan till the final decision.” It had directed the interior secretary to ensure Musharraf’s name was on the ECL. AGP Butt said the government has no objection, if the Supreme Court has modified its earlier order.
Advocate Farough Naseem, another lawyer in Musharraf’s defence team, said the April 8 order was not ‘independent’, rather it varied and modified and merged into the final judgment of the apex court. “That order has disappeared and sunk,” he added.
Chief Justice Jamali asked AGP why the government was sheltering behind the august court. “If it [federation] thinks he [Musharraf] should not leave the country, then it has power to decide the matter itself,” he added. “The apex court has not restrained the government from taking an independent decision.”
After hearing arguments from both sides, the bench dismissed the federation’s appeal. The bench will cite reasons of its order separately.
In January Musharraf was acquitted over the killing of Jamhoori Watan Party chief Nawab Akbar Bugti in a military operation in 2006. The decision meant there are now four outstanding cases against him all dating from 2007 – including treason for the imposition of emergency rule.
Published in The Express Tribune, March 17th, 2016.