AS Prime Minister Nawaz Sharif has decided to try Gen (r) Pervez Musharraf for high treason, his responsibilities have increased manifold. 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 under section 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.

In this case, Gen (r) Aslam Beg and Lt-Gen (r) Asad Durrani had taken the defence that they were only obeying the orders of superior authority, but the Supreme Court rejected the plea 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 Musharraf.

Reading the two judgments together, it is fair to reach the logical conclusion that everyone who acted upon the unlawful orders of Musharraf 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 Musharraf to avoid accusation of not implementing the judgment that might have adverse implications for Nawaz Sharif.

In the same judgment the Supreme Court has directed the government to investigate charges through the FIA against those who were alleged to have taken money from agencies and Younus Habib.

As Nawaz Sharif was one of them, it is his responsibility as chief executive to implement this part of the decision too and appoint an officer with an impeccable record to undertake the investigation. For showing his bona fide and respect for the 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.

On the contrary, the perception that the investigation was not fair and had been influenced will damage the whole process if he gets a favourable decision.

TASNEEM HAMEEDLahore