Let justice be done, though heavens may fall
A case, which was all too eventual, seeking the initiation of High Treason proceedings against General (retd.) Pervez Musharraf, has been filed and is pending adjudication before the honorable Supreme Court. In fact, five distinct petitions, asking the honorable Supreme Court to ‘direct’ the commencement of Musharraf’s trial under Article 6 of the Constitution, are being heard by a three-member bench of the apex Court, comprising of Justice Khawaja, Justice Khilji and Justice Afzal. And resultantly, as is customary in Pakistan, the media waves are abuzz with chatter about the merits of a High Treason charge against the retired General, along with the possibility and consequences of his conviction.
But before delving into any such debate, it is pertinent to clarify the law that governs the issue of High Treason in Pakistan.
The ‘crime’ and guilt of ‘High Treason’ has been defined in Article 6 of the Constitution of Pakistan. By way of background, it is significant to note that Article 6 is an innovation of the 1973 Constitution. The previous two Constitutions, those of 1956 and 1962, did not contain any provision relating to high treason. However, and wisely so, with the experience of two constitutional abrogations (in 1958 and 1969), the framers of the 1973 Constitution incorporated Article 6 into the constitutional paradigm. Specifically, Article 6(1), declares that “any person who abrogates or subverts or suspends or holds in abeyance“ the Constitution of Pakistan, or “attempts or conspires” to do the same to be “guilty of high treason”. Furthermore, Article 6(2) of the Constitution of Pakistan declares anyone who ‘aides or abets’ such acts, shall also be guilty of high treason, and that no such acts shall by validated by any court (Article 6(2A)). Thereafter, Article 6(3) of the Constitution stipulates that the Parliament “shall by law, provide for the punishment of persons found guilty of high treason”. And, pursuant to Article 6(3), the Parliament has made a law, The High Treason (Punishment) Act, 1973, which in section 2, declares the punishment for high treason to be “death or imprisonment for life”. Additionally, section 3 of the High Treason Act mandates that “no court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by a person authorized by the Federal Government in this behalf.”
Consequently, in explicit terms, the law requires that only the Federal Government, through an authorized person, has the power and the prerogative to initiate high treason proceedings. (An amendment to section 3 of the High Treason Act, allowing “any citizen” to make “a complaint” was proposed in 2010, but this was never enacted into the law). It is also pertinent to mention that it is unclear what the nature of these proceedings might be. In the absence of established domestic jurisprudence or framework for a trial of high treason, there is ambiguity as to what a charge of high treason would entail, how would it be prosecuted, how would the jurisdiction of courts work in this regard, and on what standard of proof would the defence have to substantiate.
The fact that it is the only the Federal Government, and not the courts, that can take cognizance of and initiate high treason proceedings, was recently affirmed in the landmark judgment of the honorable Supreme Court, in the case of Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 SC 719). In response to the Petitioners urging that the Supreme Court “take cognizance of the matter [of High Treason, pursuant to Article 6 of the Constitution] and initiate a prosecution against the President” the Court declared that, in the absence of a written reference filed by the Federal Government (through a duly authorized person), “it is not the function of the Courts of law” to take up such proceedings themselves. The same principle was also applied earlier in the case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473).
Under the High Treason Act, the Secretary of Interior is authorized (through an instrument dated some decades back), as the person who, on behalf of the Federal Government, can initiate the proceedings of high treason against any individual. However, in the present circumstances, despite the return of General (retd.) Musharraf, the caretaker Federal Government seems to have made a conscious decision to not file a complaint under section 3 of the High Treason Punishment Act 1973, and wants to avoid the issue, leaving it for the newly elected Government to pursue, once takes charge.
In this backdrop, the case before the Supreme Court prays for a direction to be given to the interim Government to start such proceedings, without hiding behind any ‘excuses’ (in the spirit of let justice be done, though heavens may fall). The defence, on the other hand, is resisting such a direction, taking numerous pleas ranging from bias within the bench, to non-impleadment of those who ‘aided and abetted’ the actions of General Musharraf, raising objections to the dicta of July 31st, 2009 judgment (Sindh High Court Bar Association case), and even arguing that such a direction by the honorable Supreme Court will amount an abrogation of a prerogative that law has exclusively reserved for the executive. As a result, the effective constitutional issue before the court is whether, under Article 184, the honorable Supreme Court can ‘direct’ the Federal Government to initiate such proceedings – emulating, essentially, the ‘justice of peace’ powers of a Sessions Judge (under section 22-A and 22-B of the Criminal Procedure Code) to register an F.I.R., in case the police is refusing to do so.
There can be no denial of the fact that General Musharraf has played havoc with the constitutional fabric of our nation, and that he should have to pay for his deeds (part of which, at least, he already is paying for). However, the impulse of revenge and a desire to see the General fall must be balanced against the requirements of law and mandate of the Constitution. Expanding the contours of law, through interpretation, to incorporate powers such as those of ‘justice of peace’ (which in themselves are perhaps unconstitutional, for being in violation of the doctrine of separation of power, under Article 175 of the Constitution), is not nearly the appropriate remedy in this case. The desire to see Musharraf behind bars (or hung?) is not sufficient in itself to disregard the mandate of law. The absence of political will, as lamentable as it is, cannot be substituted with an infusion of judicial mettle. And that too, in a case as sensitive and fundamental, as one concerning high treason.
It would perhaps be prudent to learn, in this regard, from the experience of other countries that have tried individuals for high treason. In Turkey, for example, high treason proceedings, against Adnan Menderes and Abdullah Öcalan, were protracted, deliberate and still controversial. In fact, even 20 years after the conviction, the European Court of Human Rights ruled that Turkey had violated Article 3, 5, and 6 of the European Convention of Human Rights by granting Öcalan no effective remedy of appeal.
We must resist the temptation to make similar mistakes. The national and judicial resolve, in regards to the due process of law, is tested the most when applied to those who we despite as a nation. Still, the endeavor of law is to ensure that justice, to the most vile, is not turned into a lynching process. And that the letter and spirit of the law be followed, even more conscientiously when trying the villains. This, is the real test of ‘let justice be done, though heavens may fall.’
The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School. He can be reached at: saad@post.harvard.edu