To Whom It May Concern!
Offence of High Treason
Article 6 of the constitution defines offence of “High Treason”. The Article is reproduced as under:
“6. High Treason. (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate, subvert or suspend or hold in abeyance, the constitution by use of force or show of force or by any other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason.
(2A) An act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court including the Supreme Court and a High Court.
(3) Majlis-e-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason”.
In view of the above text, when abrogation, subversion, suspension or holding in abeyance (including attempt or conspiracy to commit these) is coupled with use or show of force or with any other unconstitutional means, it constitutes High Treason. Therefore, the element of force or of unconstitutional means is of utmost importance in this definition.
Punishment for High Treason
In pursuance of the constitutional mandate, Majlis-e-Shoora (Parliament) passed “The High Treason (Punishment) Act, 1973”. The offense of High Treason is punishable with death or imprisonment for life under Section 2 of the said Act. The law also states that “no court shall take cognizance of an offense punishable under this Act except upon a complaint in writing made by a person authorized by the Federal Government in this behalf.” Therefore, the jurisdiction of the apex courts to adjudicate upon the circumstances constituting high treason is subject to prior authorization of the federal government.
High Treason Trial: A History
The only example available of a full trial under Article 6 is of General Pervez Musharraf case. For the purpose of trial, a Special Tribunal was set up in November 2013, and a formal complaint, authorized by the federal government, was filed in December 2013. On 17th of December, 2019, the Special Court, comprising Justice Waqar Ahmad Seth, Justice Nazar Akbar and Justice Shahid Karim, announced its verdict and majority – the verdict was split 2-1 – found Gen Musharraf guilty of High Treason. The General had been sentenced, in absentia, to death. Later on, the Lahore High Court, Lahore, on a petition filed by Gen Musharraf annulled the sentence, declared the Special Court unconstitutional and its verdict void.
The SC’s Detailed Judgment and Article 6
The detailed judgment in the Deputy Speaker’s Ruling case has been authored by Hon’ble Chief Justice of the Supreme Court, Mr Justice Umer Ata Bandial. The content of the judgment is unanimously approved by all five Judges of the bench; however, Justice Mazhar Alam Khan Miankhel and Justice Jamal Khan Mandokhail both have written additional notes of their own. In the said judgment, Article 6 has not been mentioned even once. It may be because invoking Article 6 as a consequence of the Deputy Speaker’s ruling was not the case before the Supreme Court and actually, it was the constitutionality of the ruling whereby the Deputy Speaker had rejected the RNC. Therefore, the majority of the SC judges not even referred to Article 6.
Moreover, there exists a legal bar on the adjudication of the offense of High Treason by the courts which might have restrained the majority of the judges to mention Article 6. The bar is contained in Section 3 of the High Treason (Punishment) Act, 1973. The text provides as follows:
“3. Procedure. 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”.
Therefore, the apex court in its detailed judgment did not ponder over the situation from the perspective of possible application of Article 6 on Deputy Speaker’s ruling in the National Assembly.
Furthermore, an inference may also be drawn from the fact that the Supreme Court very carefully avoided the use of any such term in its judgment which is used in Article 6. The Supreme Court in Paragraph No. 70 narrates as under:
“….By giving the said ruling, the Deputy Speaker committed jurisdictional excess by violating his substantive obligation to take a vote on the RNC as directed by Article 95(2) of the Constitution and equally by destroying the corresponding substantive constitutional right of the members of the Opposition Parties sitting in the NA to vote on the RNC”.
Similarly, the Supreme Court in the latter portion of the Judgment narrates as under:
“78. Accordingly, we hold that the ruling of the Deputy Speaker, concurred with by the Speaker, supported by the detailed reasons are without lawful authority and of no legal effect for violating the command of Article 95(2) of the Constitution and for suffering from excess of jurisdiction.”
Even prior to the judgment, the Supreme Court, in its short order dated 07.04.2022, observed the following:
“1. The ruling of the Deputy Speaker of the National Assembly (“Assembly”) given on the floor of the House on 03.04.2022 (“Ruling”) in relation to the resolution for a vote of no confidence against the Prime Minister under Article 95 of the Constitution (“Resolution”) (for which notice had been given by the requisite number of members of the Assembly on 08.03.2022, and in relation to which leave was granted to move the Resolution on SMC 1 of 2022; Const P Nos.3-7 of 2022/23 28.03.2022), and the detailed reasons for the Ruling (released subsequently and concurred with by the Speaker) are declared to be contrary to the Constitution and the law and of no legal effect, and the same are hereby set aside”.
The above excerpts are sufficient to conclude that the Supreme Court very delicately called the act of the Deputy Speaker “jurisdictional excess,” “without lawful authority,” “contrary to the constitution and the law,” “of no legal effect” but does not call it abrogation, subversion, suspension or holding in abeyance of the constitution. Here the difference in terms is of no ordinary meaning.
The part of judgment that triggered extensive debate is the concurring judgment delivered by Justice Mazhar Alam Khan Miankhel. He observed at the end of paragraph No. 12 of his narration as under:
“To my understanding, Article 5 of the Constitution, which mandates “obedience to the Constitution,” was cited to violate the Constitution. However, whether the stated acts attract Article 6 of the Constitution is also left open to be determined by the Parliamentarians as to whether they leave open the doors for such unconstitutional acts or take suitable measures to stop such like mess in future”.
Firstly, the author Judge, while expressing his opinion, has passed a piece of advice to the Parliament for its future course of action necessary to prevent a repetition of such acts. Secondly, he considered the act as a premeditated plan to violate the constitution but does not use the terms as narrated in Article 6. Be that as it may be, Article 6 is not applicable to the violation of the constitutional provisions. Violation, definitely, bears a different meaning than abrogation, subversion, etc.
Whether the Parliament can Proceed under Article 6?
In the existing law, i.e. “The High Treason (Punishment) Act, 1973,” it is only the federal government that can initiate proceedings against an offense under Article 6 by authorizing the filing of a written complaint. The Parliament has no legal role to play in this regard. However, the constitution of Pakistan gives mandate of legislation to the Parliament. The existing legislation can be changed with simple majority. In my humble opinion, sufficient material does not exist to proceed against the Deputy Speaker for the trial of High Treason. That very crucial element of force or of unconstitutional means is missing in this case!
The author holds LL.M (Criminology) degree. He is a former Civil Judge/Magistrate. He can be reached at firstname.lastname@example.org