As Prime Minister Nawaz Sharif has decided to try Gen (retired) Musharaf for high treason, his responsibilities have increased many folds. He must act strictly in accordance with the constitution and law and with complete impartiality to avoid being accused of bias in any way. For initiating trial u/s 6 of the constitution and framing a charge sheet the government is fortunate to have the guiding rules provided by the Supreme Court in the famous Asghar Khan case. It may be mentioned here that in this case Gen (retired) Aslam Beg and Gen (retired) Asad Durrani had taken the defense that they were only obeying the orders of superior authority, but the Supreme Court rejected the same and gave the following ruling: “It is clear that the vesting of the Supreme Command in the President did not empower the President, even after the Eighth Amendment, to act in his discretion or upon his satisfaction. Consequently, no question of a command, let alone a lawful command having been made by the President to make disbursements of money among favoured politicians arises. Without prejudice to the foregoing, only lawful commands are required to be obeyed. All officers who obey unlawful commands are individually liable. All superior officers giving unlawful commands or who fail to prevent unlawful action on the part of their subordinates are liable and culpable. In the event of failure of the relevant State authorities to take action, the rights of the people of Pakistan are to be to be upheld by this Court making all necessary directions to the functionaries and institutions of the state, including the Election Commission of Pakistan, including the direction to investigate and prosecute.” According to the judgment anyone acting upon an illegal order cannot claim immunity from prosecution and the court also directed the government to initiate action against the two generals, unlike the Sindh High Court Bar Association case in which no such direction was given against Gen (retired) Musharaf. Reading the two judgments together it is fair to reach the logical conclusion that everyone who acted upon the unlawful orders of Gen (retired) Musharaf for imposition or the continuation of unconstitutional emergency in any way whatsoever may be guilty of aiding or abetting or corroborating as specified in Article 6, sub clause (2) of the constitution. As the previous government did not implement the direction given by the Supreme Court in the Asghar Khan case the present government must do it without any delay, even before initiating proceedings under Article 6 against Gen (retired) Musharaf to avoid accusation of not implementing the judgment that might have adverse implications for Prime Minister Nawaz Sharif. In the same judgment Supreme Court has directed the government to investigate charges through FIA against those who were alleged to have taken money from agencies and Younus Habib. As Mr. Nawaz Sharif was one of them, it is his responsibility as the Chief Executive of the country to implement this part of the decision too and appoint an officer with an impeccable record to undertake the investigation. For showing his bona fides and respect for law if he leaves his office during investigation it would herald a new era of fairness, transparency and rule of law in Pakistan and also enhance his stature otherwise the perception that the investigation was not fair and impartial and had been influenced if he gets a favorable decision will damage the whole process.
Posted on: Sun, 14 Jul 2013 09:52:38 +0000
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