Article 6 only offence prescribed in Constitution

ISLAMABAD: There is only one offence prescribed in the Constitution of Pakistan and that is the Article 6, Justice Shahid Karim who was part of three-member Special Court held for Gen (R) Pervez Musharraf trial, writes as beginning line of his additional note forming part of the detailed verdict released on Thursday.

His note spanning over 57 pages describes in detail the philosophy behind constitutional governance, importance of written constitution, the history of Article 6 in peculiar circumstances of Pakistan having chequered history with military coups, definition of treason in different constitutions and trials of military generals in other countries. Introduction of Article 6, Justice Karim notes, aims to bring a transition from martial lawlessness to a constitutional order; from the mantra of ‘Let history judge’ to ‘Judges, Let’s rectify history.’

It is based on the notion of righting the wrongs of history. “Article 6 was meant to be a bulwark against any creeping coup d’etat which may cause a constitutional deviation. The framers of the Constitution had seen this nation endure two martial laws and set out to right the course of recent history of dictatorship,” he mentions with reference to the inclusion of this article in the Constitution in 1973. The policy of the treason clause is to be understood in the light of history, he writes before referring to the report of Constitution Committee presented before the National Assembly in December 1972.

By then, it was proposed as Article 5. A para from the report of Constitution Committee forming part of Justice Karim’s note reads, “Another new provision regarding High Treason has been introduced to eliminate any possibility, in the future, of the Constitution being abrogated by any person. Under Article 5 any person who abrogates 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. In addition, a specific provision has been made to the effect that there shall be no protection under the Fundamental Rights to any offender from punishment retrospectively with effect from March 23, 1956.”

Justice Karim further notes that judgment in Asma Jillani case wherein Gen Yahya Khan was declared usurper and the report of the Constitution Committee was catalyst for inserting Article 6 in the Constitution. “The members of the Constitution Committee thought they had seen the last of the dictators and that Asma Jillani firmly entrenched the demise of usurpers,” he writes. Although it was done with an eye on history of Pakistan as well as of other countries, he adds, but these enactments were not followed up by a resolve on the part of successive democratic regimes to ensure that military rulers were tried and convicted for high treason. “Article 6 remained a mere painting, to be looked at.”

Then Justice Karim explores the background history of treason and explains that the framers of Pakistani Constitution didn’t choose to contrive their own definition of the crime of attempting the subversion or abrogation of the Constitution. “Treason is itself a term which was familiar to the law before it was used in Article 6. Terms thus weighted with historic significance were deliberately chosen in order to better deal with a problem the practical dangers of which history was believed to teach,” he writes. Quoting Article 3 of the United States Constitution, Justice Karim notes that treason is the betrayal of allegiance owed a political sovereign either because of citizenship or because of the acceptance of the protection of laws.

Drawing examples from other countries, he explains how definition of treason forms part of different constitutions with one difference which is related to the threats being faced. In stable democracies, the executive and legislative branches no longer consider treasons charges as the principal bulwark of the state security as the people were singularly confident of external security and internal stability but “sadly that is not the case in Pakistan where we continue to grapple with the felony of treasonable conduct.” Despite Article 6, there have been no treason prosecutions and so lack of any treason charge (let alone treason conviction) has allowed successive dictators to run amok, he notes.

Justice Karim has also mentioned trials of military leaders in South Korea who were convicted of insurrection, treason and corruption in 1996. “The charges arose out of their December 1979 coup. It was a watershed case and the criminal trial attracted worldwide attention,” he writes. Then he mentions the trial of Greek military junta of 1967-74 and quoted a verbal encounter between the judge and the main accused.

As Greek’s coup leader was produced before the court along with his fellow ring leaders for trial on high treason, he yelled: “I will answer only to history and to the Greek people.” The voice of the presiding judge followed him: “Do you think that history is absent from this court room?” Thus the cycle of transitional trials severed Greek’s authoritarian past and set it on course to democratisation from which it has never looked back, Justice Karim notes.

Highlighting the importance of written constitution, Justice Karim first quoted former chief justice of US Supreme Court John Marshall that “a written constitution is the greatest improvement on political institutions” and then former chief justice of Pakistan Justice Hamood ur Rehman that “the written Constitution is the source from which all governmental powers must emanate and it defines its scope and ambit so that each functionary should act within his respective sphere. No power can, therefore, be claimed by any functionary which is not to be found within the four corners of the Constitution nor can anyone transgress the limit therein specified.”

Drawing the definition of Justice Hamood, he writes that this “is the foundational rule which animates Article 6 and makes the crime to be of such grave consequences. On this touchstone, Justice Karim continues, the actions of the accused (Musharraf) run afoul of the ground norm and the well-entrenched limits of the paramount law. The limitations imposed by the Constitution are essential for preservation of the public and private rights of the people and thereby to create written boundaries for all those on whom are conferred powers and duties. “It must be preserved inviolate,” he notes.