ISLAMABAD: The July 31, 2009 Supreme Court decision has squarely held General (retd) Pervez Musharraf responsible for his Nov 3, 2007 unconstitutional action whereas the 18th Amendment, as adopted by the last parliament, has made the dictator and his alleged associate generals, the so-called gang of four involved in Oct 12, 1999coup, vulnerable to be tried under Article 6 of the Constitution.
No serving general, no serving judge, no former prime minister, no ex-minister and no former MP fall in the category of those who had abrogated or had abetted in the abrogation of the Constitution by the jailed dictator now facing the trial under the charges of high treason.
The Interior Ministry, which has to formally register the case against Musharraf and his alleged abettor under Article 6 of the Constitution, would have to move while remaining within the limits of the Constitution and the SC’s order.
As per the Constitution and Supreme Court’s August 31, 2009 decision, General (retd) Pervez Musharraf can be tried under Article 6 of the Constitution for his November 3, 2007 action as well as for his October 12, 1999 martial law. Although, the 2008 parliament scrapped certain parts of the 17th Amendment passed by Musharraf’s parliament in 2004, the 18th Amendment endorses the indemnity of the oath of judges under the PCO taken in 2000.
Therefore, as per the Constitution, Musharraf could be tried for high treason for twice abrogating the Constitution, once in October 1999 and again in November 2007, but the judges who had taken oath under Musharraf’s PCO in 2000 are protected by the pre as well as post 18th Constitutional Amendment.
Musharraf’s 12 October 1999 martial law, which was indemnified by the 2002-2007 parliament under the dictator’s rule, did not get the 2008-2013 parliament’s endorsement but the dictator’s consequent actions, including the oath of judges in 2000 under the PCO, got complete constitutional protection in the 18th Amendment.
In regard to his Nov 3, 2007 abrogation of the Constitution, the July 31, 2009 decision of the Supreme Court sets the limits and holds him responsible for the action. Therefore, those (including Musharraf and his lawyers) desirous of involving certain serving army generals, including incumbent army chief, former prime minister Shaukat Aziz, his cabinet and others in this case, are deliberately creating confusion to save the skin of the dictator.
The July 31, 2009 order of the apex court had clearly declared Musharraf’s Nov 3, 2009 action as unconstitutional, illegal, mala fide and void ab initio but did not implicate anyone else, including the then prime minister, cabinet members, top army commanders, etc, in the Nov 3 abrogation of the Constitution.
The July 31 SC order had though settled the issue by ruling: “The actions of General Pervez Musharraf dated 3rd November, 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed’s case and his resultant disqualification to contest the election of president. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneuvering another term in office of President, therefore, the same were mala fide as well.
“The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words “I, General Pervez Musharraf…….” used in it.”
Those media commentators, politicians and opponents of the present independent judiciary, who are desirous of dragging others including the PCO judges of the 2000 PCO, in the high treason case are making an unconstitutional demand. The 18th Amendment, despite having declared the 2000 PCO as unlawful, protected the superior court judges, who had taken the said oath, through 270AA (3), which reads as: “(a) Judges of the Supreme Court, High Courts and Federal Shariat Court who were holding the office of a judge or were appointed as such, and had taken oath under the Oath of Office (Judges) Order, 2000 (I of 2000), shall be deemed to have continued to hold the office as a judge or appointed as such, as the case may be, under the Constitution, and such continuance or appointment, shall have effect accordingly; (b) Judges of the Supreme Court, High Courts and Federal Shariat Court who not having been given or taken oath under the Oath of Office (Judges) Order, 2000, (I of 2000), and ceased to hold the office of a Judge shall, for the purposes of pensionary benefits only, be deemed to have continued to hold office under the Constitution till their date of superannuation.”
