The Article-6 of the Constitution states: "High Treason: (1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason."
The Supreme Court Judgement of 31st July 2009 paragraph-21 and paragraph-23 state:
"21. The Proclamation of Emergency issued by General Pervez Musharraf as the Chief of Army Staff (as he then was) on November 3, 2007; the Provisional Constitution Order No 1 of 2007 issued by him on the same date in his said capacity; the Oath of Office (Judges) Order of 2007 issued by him also on the same date though as the President of Pakistan but in exercise of powers under the aforesaid Proclamation of Emergency and the Provisional Constitution Order No 1 of 2007; The Provisional Constitution (Amendment) Order, 2007, issued by him likewise on 15.11.2007; the Constitution (Amendment) Order, 2007, being President's Order No 5 of 2007 issued on November 20, 2007; the Constitution (Second Amendment) Order, 2007, being the President's Order No 6 of 2007 issued on 14th December, 2007; the Islamabad High Court (Establishment) Order 2007 dated 14th December 2007 being the President's Order No 7 of 2007; the High Court Judges (Pensionary Benefits) Order, 2007, being President's Order No 8 of 2007; the Supreme Court Judges (Pensionary Benefits) Order, 2007, being President's Order No 9 of 2007 dated 14th December, 2007, are hereby declared to be unconstitutional, ultra-vires of the Constitution and consequently being illegal and of no legal effect."
"23. A copy of this judgement shall be sent to the Secretary Law and Parliamentary Affairs, Government of Pakistan, for compliance."
It is clear without any ambiguity that the Musharraf's act of declaring the emergency on 3rd November 2007 all acts under it as enumerated in paragraph-21 of the Judgement quoted above have been declared unconstitutional, ultra-vires of the Constitution and of no legal effect. Almost four years have passed since the judgement, yet the Secretary Law of the PPP government did not take any action as required by law in compliance to the paragraph-23 of the judgement quoted above.
In 1958, only 11 years after our independence, Ayub Khan, the Commander-in-Chief (C-in-C) of the Army took over the country as Chief Marshal Law Administrator. Another eleven years later, in 1969, another C-in-C of the Army Yahya Khan abrogated the Constitution and imposed Marshal Law. On 5th July 1977, the Chief of Staff of the Army Zia-ul-Haq suspended the Constitution. Lastly on 12th October 1999, Musharraf took over the country by force, suspended the Constitution and proclaimed himself the Chief Executive.
There are a number of petitions in the Supreme Court calling for the trial of Musharraf for high treason under Article-6 of the Constitution. Recently, one of Musharraf's lawyer stated on TV that legal action under Article-6 of the Constitution will also result in the indictment of many people who corroborated with Musharraf in the unconstitutional acts.
Today in Turkey, about 200 members of their armed forces including generals are being tried for conspiring to overthrow the democratically-elected government. The Turkish government was not deterred from taking action either by the number or by the ranks and position of the conspirators. In 1945, it was settled once for all at Nuremberg that compliance with illegal orders was no excuse.
The Caretaker government should take necessary steps strictly in accordance with the law for Musharraf's indictment and of all persons who aided him. It is essential that the due process of law takes its course without any discrimination or consideration of the position and the number of people involved. Time has come when the law of the land is fully enforced and all those guilty of high treason are brought to book. Considerations whatever they may be other than the strict enforcement of law have resulted in it being flouted in the past. The present caretaker Prime Minister as former judge must realise that if the law is not enforced it is likely to be flouted again.