ISLAMABAD, Oct 23: A counsel for presidential candidate Justice (retd) Wajihuddin Ahmed on Tuesday informed the Supreme Court that although he was not seeking prosecution of any person, the violation of constitutional provisions relating to oath, command and functions of the armed forces would render its violator guilty of high treason for subverting the Constitution.

“Article 6 of the Constitution is an innovation in the constitution that deals with persons attempting to abrogate the Constitution by use of force or by other constitutional means and therefore guilty of high treason,” Barrister Aitzaz Ahsan argued before a 11-judge larger bench hearing petitions challenging the acceptance by the Election Commission of Pakistan of Gen Pervez Musharraf’s nomination papers for the presidential election.

Justice Javed Iqbal, who is heading the bench, said the court intended to conclude hearing the petitions against the eligibility of Gen Musharraf to contest the presidential polls during this week or positively by the end of next week.

“We know the anxiety of the government, but the case is no less of a magnitude than that of the chief justice’s case against his suspension”, the judge observed when Attorney-General Malik Mohammad Qayyum insisted on an early decision of the case.

Barrister Ahsan said that without seeking prosecution of anybody he wanted to establish that Article 6 was a kind of a firewall around army personnel and would apply whenever the president filed his papers for the presidential election.

He explained that if a person seeking an office by violating articles 243 (command of armed forces), 244 (oath of armed forces) and 245 (functions of the armed forces) of the Constitution or by way of Article 6 (high treason), it would mean that he was subverting the Constitution. He said that Article 6 was specific to the army chief because no-one else abrogated the Constitution by force.

At this, Justice Faqir Khokhar pointed out that everyday the Supreme Court held different actions of the government or the president to be illegal and asked Barrister Ahsan: “Does it mean he is also guilty of high treason?”

Mr Ahsan said he was only opposing the nomination of Gen Musharraf because even the Seventeenth Constitutional Amendment had not validated Gen Musharraf’s candidature for another term in the presidency. “His office may be protected under the 17th Amendment but not his candidature, and what I am seeking is a declaration that the president is not qualified to file his nomination,” he said.

He also tried to establish that office of the president was a political office and the Pakistan Army Act and the army regulations disqualified army officers from contesting the presidential election.

Justice Javed Iqbal said there was no doubt that the office of the president was a political office and any ambiguity in this regard had already been removed under the Eight Constitutional Amendment adopted during the Ziaul Haq regime.

The judge deplored that although the 17th Amendment was a package of compromises that changed the basic structure of the Constitution, yet parliament had duly approved it.

At this, Barrister Ahsan said the Supreme Court had sanctified the amendment in the Pakistan Lawyers Forum case. He argued that the recent election to the office of the president was intensely political in nature because in 1988 Ghulam Ishaq Khan was nominated by the Islami Jamhoori Ittehad against late Nawabzada Nasrullah fielded by the then opposition parties.

Likewise in 1993, Farooq Ahmed Khan Leghari, being a candidate of the PPP, contested against Waseem Sajjad of the PML for the presidency and Rafiq Tarar was the nominee of the PML against Aftab Shahban Meerani of the PPP in 1998.“The presidency is a political office and road to it is a political road and, therefore, an army officer is not entitled to indulge in politics by becoming a presidential candidate,” Barrister Ahsan said.

He criticised the proposer and the seconder of Gen Musharraf for the election, saying anybody who seduced any army officer or abetted for committing mutiny or attempted to seduce the officer from his allegiance or his duty was liable to be punished for life or 10 years in jail under the Pakistan Penal Code.

He also criticised the statement filed by senior counsel Sharifuddin Pirzada on behalf of the president saying that he would shed his uniform if elected for another term. He said the statement carried an implicit threat that he would not take off his uniform unless elected president.

“Implicitly, the statement also says that the president could not take oath in uniform and that although he could be a candidate in uniform but not president in uniform for the next term.”

However, Justice Chaudhry Ijaz observed that the document was irrelevant in deciding the instant case.