Daily Times

The most probable emerging scenario is that former president Pervez Musharraf flies out of the country this week while one of his ardent critics, Hamid Mir, recuperates from the cowardly attack to kill him in Karachi last Saturday. Was Hamid Mir’s trip to Karachi in this regard, only he can tell. However, informed legal experts are expecting Musharraf’s lawyers to file an application to the Sindh High Court praying that his name be removed from the Exit Control List (ECL), which may perhaps be allowed by the court.

These legal experts are of the view that, in the Supreme Court (SC) order given by a three-member bench consisting of Justice Jawwad S Khawaja, Justice Khilji Arif Hussain and Justice Ejaz Afzal Khan in the constitutional petition by Moulvi Iqbal Haider and others, Pervez Musharraf was not put on the ECL. This constitutional petition sought direction from the SC to the federal government to lodge a complaint under Article 6 of the constitution against General Pervez Musharraf and others for imposing a state of emergency.

The court gave this relief to the petitioners and instructed that an inquiry be conducted expeditiously but did not order putting him on the ECL as maintained by some government leaders. The PML-N leadership wants to pass the buck of letting Musharraf off the hook to the judiciary as it is apprehensive that the government will be blamed for letting Musharraf fly out of the country. Then the case against him may be tried in absentia. If that happens, the court can at best convict and declare him an absconder. Sitting in luxury flats in London or Dubai, Musharraf would be least bothered.

It is a much reported fact now that there was a deal between the civil and military leadership that once Musharraf would present himself before the trial court on the date of indictment he would be allowed to leave the country, and that the Sharif-Musharraf hatchet would be buried in the judicial mortuary. However, when PML-N hawks made the prime minister break this understanding, the military leaders expressed their annoyance in a measured tone. If there was any doubt about the Chief of Army Staff’s (COAS’s) statement while addressing Musharraf’s favourite Special Services Group (SSG) officials, how the media and politicians interpreted it, the masses and wary public were made to think that, once again, democracy was in danger.

The ideal position of a democrat in normal circumstances is that Musharraf should have been tried for his coup against an elected government on October 12, 1999 but that would also have taken down with him military associates and the abetting judiciary. Now, if he is convicted for the November 3, 2007 emergency proclamation, the question is: what about the judges and military officials who abetted him? Musharraf had struck the superior judiciary mainly because he was apprehensive that the court would declare his election invalid in the case filed by Justice (Retd) Wajihuddin, praying that he could not get himself elected for the third time and also when he was in uniform. His apprehension was right considering that the judiciary had given unequivocal support to Chief Justice (CJ) Iftikhar Chaudhry when Musharraf tried to remove him clumsily.

Thus what happened to the retired general on the day of his indictment was not as significant as the day when the judicial history of Pakistan was made on November 5, 2007. A seven-member bench dispensed an order against the emergency proclaimed by General Pervez Musharraf on November 3. This was the first time that the superior judiciary gathered courage and issued an order against the emergency declared by a sitting military dictator. Interestingly, the order was given on the application filed by Barrister Aitzaz Ahsan on November 2, a day before General Musharraf proclaimed the emergency in his capacity as the COAS. Whether it was Aitzaz’s assessment of the situation or whether his mole in the Musharraf establishment leaked the information is not that open a question. Throughout the movement for the restoration of the judiciary, some leaders were of the view that somebody in Musharraf’s constituency had planned to blow up his flight against the judiciary and weaken his control.

Coming back to the SC’s November 5 order, it maintained: “This application (Aitzaz’s application) was filed in the court on November 2, 2007 praying that respondent, government, may change the composition of bench by adopting extra-constitutional measures, which could mean either by placing martial law, bringing the Provisional Constitutional Order (PCO) or by imposing emergency.”

The order stated: “2. (i) Government of Pakistan, i.e. President and Prime Minister of Pakistan are restrained from taking any such action, which is contrary to independence of judiciary; (ii) No judge of the Supreme Court or of the High Courts including Chief Justice(s) shall take oath under PCO or any other extra-constitutional setup; (iii) Chief of Army Staff, Corp Commanders, Staff Officers and all concerned of the civil and military authorities are hereby restrained from acting on PCO, which has been issued …(iv) They are also restrained for any such action, which is contrary to independence of judiciary.”

This order was followed by most of the judges barring a few black sheep. So, keeping the mood of the judiciary in view, it can be safely guessed what the trial court’s decision would be, particularly when a superior court had already ordered the emergency and the new PCO was contrary to the independence of the judiciary. The only open question is whether it was an act of ‘treason’, a charge the military establishment hates and feels should not be levied on its former chief. Any milder formulation would not provoke the khakis.

The real issue is that the government has to get over this issue and put it behind it as, sooner rather than later, the state will need the army’s solid support to wipe out terrorism from the country. The government should sequence its challenges right. Terrorism is going to remain a major menace for the next few years, if not more. All focus should be on this issue as Musharraf has already been indicted twice, first on November 5, 2007 and then recently on March 31, 2014. So, for the time being, let us live with this gain scored by the democratic system and not distract ourselves from the existential challenge thrown by over 100 militant groups to the state.

The writer is the author of What’s Wrong with Pakistan? He can be reached at ayazbabar@ gmail.com