Daily Times Editorial Feb 2, 2014

Musharraf’s legal quagmire The special court hearing General (retd) Pervez Musharraf’s treason case has rejected his plea to be allowed to go abroad on the grounds that it does not have jurisdiction to take his name off the Exit Control List (ECL). In addition, the court, after examining the medical report submitted by the Armed Forces Institute of Cardiology (AFIC), ruled that there appeared nothing in the report to justify Musharraf’s request to be allowed to travel, preferably to the US where his doctor resides, for treatment. Prima facie, the court held, the AFIC report does not indicate that the doctors who examined him had suggested that there was any restriction on his movement, therefore his non-appearance in court despite several summons for nearly a month was not justified. The court issued bailable warrants of arrest, bail available if he deposits a bond for Rs 2.5 million. The court fixed February 7 for the next date of hearing, ordering Musharraf’s appearance once again. The bailable warrants of arrest will be served on Musharraf by the IG police. Musharraf has avoided appearance before the court so far, the reasons cited for his absence being security and later his health. Reports say his legal team is of the view that he should avoid appearance before the special court so long as its challenge to the formation, legality and jurisdiction of the court, which is sub judice, is decided. From one angle this is not an unreasonable argument. If the fundamental question of the special court’s setting up and power to conduct Musharraf’s trial has been challenged and until it is decided, the court cannot reasonably proceed with the trial. Despite this view of Musharraf’s defence team, legal experts are of the view that at the next date of hearing, February 7, all justifications for non-appearance other than that fundamental challenge having been rejected, Musharraf will not be able to avoid appearance. If he still does, non-bailable warrants could be issued and he could be arrested, even from hospital. The legal noose has been tightening around the General’s neck slowly but surely. His defence team has had a tough time getting the courts to give relief of any kind. For example, a Supreme Court larger bench has rejected Musharraf’s two review petitions asking for revisiting the apex court’s July 31, 2009 verdict that laid the foundations for the NRO case and Musharraf’s treason charge. The petitions were rejected on the ground that they were time barred and lacked merit. So that fundamental challenge was beaten back, and now the tactic of non-appearance too appears to have run its logical course. It makes sense for Musharraf to appear before the court as soon as possible. Musharraf would do his cause much good by allaying the impression that he is deliberately avoiding appearance. Considering that in the past Musharraf has rejected all advice to stay away from the country, and after returning, to leave, he should now translate into practice his oft-repeated claim to want to stay and fight out the cases against him. Appearance before the court would not in any way weaken his challenge to the formation and jurisdiction of the special court. Unfortunately reports say his legal team is still relying on challenging the special court’s order for appearance before February 7 in the superior courts. Whether such an appeal would be upheld is a moot point however. It is unlikely any superior court would see fit to interfere with a perfectly legal order for appearance by the accused. The case has aroused great interest amongst some sections, particularly legal circles, since it is the first time in Pakistan’s history that a military dictator is being tried for treason. On the other hand some observers see the whole exercise as a massive distraction from the urgent task of taking on the Taliban. The historic nature of the conjuncture is undeniable, notwithstanding reservations about the partial and arguably partisan nature of the charge being restricted to Musharraf’s November 7, 2007 imposition of emergency while ignoring the larger issue of the coup of October 12, 1999. These and other anomalies and unanswered questions still cast a long shadow over the proceedings, and it seems unlikely, even if Musharraf is indicted on his first appearance on February 7, that the whole affair will end any time soon.