By Barrister Ameer Abbas Khan
In such an environment when people are talking about a rift between army and government on the issue of General (R) Pervez Musharraf and they were anticipating that Musharraf is just about to leave Pakistan and were not showing confidence in their judicial system, the decision of the Supreme Court to suspend Sindh High Court’s decision to remove Musharraf’s name from ECL is a great victory for the rule of law.
Indeed, it would have been a very difficult decision for the Supreme Court to make but considering when the objective is to do justice then nothing remains difficult and it simply becomes a matter of applying law and evidence to the facts.
Its not possible to review the Supreme Court’s decision without looking at its reasoning but it appears that, in suspending SHC’s decision of removing Musharraf’s name from ECL, the Apex Court did consider if presence of the accused is essential in criminal cases and also observed that warrants had to be issued against Musharraf in the past.
Considering that Courts had to repeatedly ask Musharraf, when he was abroad, to appear before Courts and they had to issue order for the confiscation of his property as well, the Apex Court apparently questioned if he would return for his pending cases.
Apparently, the main reasons for Musharraf to travel abroad is to see his mother and for his own treatment. The Court would have to balance the seriousness of his urgency to travel abroad with the seriousness of his cases.
In addition to accused’s previous record, such a decision where restricting someone’s right to travel or liberty has to be balanced against the nature of allegations and the strength of evidence against him.
Musharraf has a number of allegations, including detention of judges, murder of Benazir Bhutto, murder of Abdul Rashid Ghazi and his mother, murder of Akbar Bugti and high treason.
Of all these cases, in my opinion without having access to all the evidence against him, the strongest case against Musharraf would be of suspending the Constitution in imposing Emergency in November 2007 contrary to Article 6 of the Constitution.
The mere fact that he suspended the constitution, on its own, shows more than a prima facie evidence of him committing high treason contrary to Article 6 of the Constitution.
Because of such a strong evidence against Musharraf in relation to high treason case, its possible that a larger bench of Supreme Court, comprising five judges, would have felt that Musharraf would leave Pakistan for never to face such a serious allegation and therefore they might have decided in favour of keeping Musharraf’s name on ECL for the time being.
It’s a great decision for Pakistan and considering the public opinion about immense pressure from the Army to let Musharraf go it’s a great victory for justice, it’s a great victory for the Rule of Law.
And we have started to prove that we believe in the notion: “Let justice be done, though the heavens may fall”.
Although the Supreme Court has just suspended SHC decision and the substantive hearing to deal with the appeal is expected to take place in 4 weeks time, the fact that the due process is being followed will not only strengthen the judiciary but will ensure its independence too.
An Abdalian and Aitchisonian, Barrister Ameer Abbas Ali Khan, is a Solicitor-Advocate (UK), Advocte High Court. He has LLB (Hons) UK, LLM (LSE), Bar-at-Law from Lincoln Inn, and lives in London. His father has been an MP in Pakistan over several decades.
See also by Ameer Abbas: Arrest of Altaf Hussain: A big deal? No.