If tried under Article 6 of the Constitution for the November 2007 emergency alone then notwithstanding the morality or legality of his actions Musharraf will go down as a victim of injustice, discrimination and personal vendetta.
The most commonly raised question in consequence of our Government’s well timed announcement of trying Musharraf; ‘why for November 2007, why not for the original abrogation of Constitution in October 1999?’ is most commonly responded by;
1. The Government or Judiciary’s apparent stance i.e. October 1999 coup was given legal cover by the Supreme Court and later the Parliament.
2. The common man’s common sense response i.e. trying Musharraf for October 1999 coup would, in light of Article 6(2) of the Constitution, result in the implication of his ‘aiders’ and ‘abettors’ including several members of the judiciary and the all just Chief Justice Iftikhar Chaudhry.
In the first instance the legal minds so conveniently ignore Article 270 AA of the Constitution, inserted vide the 18th Amendment of 2010, clause 1 of which states;
“270AA: (1) The Proclamation of Emergency of the fourteenth day of October, 1999, the Provisional Constitution Order No. 1 of 1999, the Oath of of Office (Judges) Order, 2000 (No. 1 of 2000), Chief Executive’s Order No. 12 of 2002, Chief Executive’s Order No. 19 of 2002, the amendment made in Constitution through Legal Framework Order, 2002 (Chief Executive’s Order No. 24 of 2002), the Legal Framework (Amendment) Order, 2002 (Chief Executive’s Order No. 29 of 2002) and the Legal Framework (Second Amendment) Order, 2002 (Chief Executive’s Order No. 32 of 2002), notwithstanding any judgement of any court including the Supreme Court or a High Court, are hereby declared as having been made without lawful authority and of no legal effect.“
One wonders if the Constitution is at all supreme then why is this provision not being catered for in ascertaining whether the coup of October 1999 is actionable under Article 6 or not?
And if the abovementioned Article is to be ignored and the 1999 proclamation of emergency and all consequent acts have legal cover then wasn’t Musharraf, at the time of imposing emergency in November 2007, the de-facto and de-jure head of the state; the President and under the cover of Presidential Immunity?
The present Government and the Judiciary need to be mindful of these and all consequent questions that will be raised on their role in trying Pervez Musharraf under Article 6. It would not be easy for historians or students of law and politics to believe that the current Chief Justice; prime victim of the 2007 emergency and the current Prime Minister; prime victim of the coup in 1999 were not at all motivated by personal vendetta, adding a questionable process of law to that would put a huge question mark on the motives of both the ruling party and the Judiciary.
High treason is a serious charge worthy of an intricate procedure and the highest level of prudence. Any reckless decision or process to implicate one individual and exonerate another would result in yet another judicial blunder like the hanging of Zulfiqar Ali Bhutto, the stains of which mar our Judiciary to this very day.
Admittedly Media, mainstream political parties and most members of Judicial fraternity are against General (retd) Pervez Musharraf and his actions but this is not an election, popular vote has no role in it, this is a trial and requires due process of law and provision of justice to an individual even if he stands alone.