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Huzaima Bukhari & Dr. Ikramul Haq
“Syed Jamaat Ali Shah, former commissioner of Pakistan Commission of Indus Water, whose name was put on the Exit Control List after it was established that he had helped and facilitated India in building a hydropower project on Pakistan’s Indus River, inflicting huge damage to the country’s water interests, has escaped to Canada.” The News, 2 January 2012.
In the historical perspective of the Sub-continent, traitors have been appearing in different spectrums of life —from those who usurped power by murdering the sovereign, to the ones who sided with enemies against their own nation. They continue to emerge on the political front despite having met with horrific ends they deserved—yet they have failed to deter their followers to this day.
The question is what are those acts that would attract laws related to treason? Chapter VI of the Pakistan Penal Code, 1860 mentions inter alia conspiracies against the State, collection of arms for the purpose of waging war (s. 122), concealing knowledge about such designs (s. 123) condemnation of the creation of the country, (s. 123A) defiling the national flag (s. 123B), assaulting president or the governors with the intention of creating hurdles in the lawful exercise of their powers (s. 124), sedition (s. 124A), depredation on territories (s. 126), involvement of public servants in various crimes (ss. 128 & 129). Interestingly, only a few not very significant cases have been reported which contain the word ‘treason’ but none on the substantive aspects or the act of high treason under Article 6 of the 1973 Constitution that includes subverting/abrogating/holding in abeyance the Constitution, by use or show of force or by any other unconstitutional means. Surprisingly, known unconstitutional acts of military takeover, in utter disregard of the supreme law of the country, were never taken cognizance of under Article 6, either by the civil government on restitution or the apex court through suo motu or by way of petition by any person/party under Article 184(3) of the Constitution.
Highest Judicial organ of Pakistan has to its credit, endorsements of unconstitutionally constituted governments but no instance of instructing subsequent civil governments to initiate high treason against the guilty ones, including their abettors. Had this been done, perhaps the process of democracy and representative governance would not have been so badly damaged and there is great possibility that the citizens of this country could have enjoyed their fundamental rights just like the people of other civilized countries.
How conveniently, the masses are mercilessly trodden upon by certain persons or certain classes of persons without there being any persecution of these mischievous elements. How easily is this country taken for a ride by a handful of cronies and sycophants rendering its future at stake with such acts going unpunished! How unfortunate that a small percentage of the population has been holding the majority hostage for their nefarious activities, unbridled personal yearnings and vested interests! How miserable that 2% of this nation is in control of all the national resources while remaining 98% are toiling hard to meet their ends or forced to live under inhuman conditions! How ironic that the proud people of a nuclear State are out in the streets protesting against scarcity of basic necessities like electricity and gas! Above all, how can we easily forget and forgive the forces that mutilated the political geography of the Sub-continent in 1971? Why were no proceedings for high treason initiated against them? Why were those responsible for dismembering the country given honours but not publically hanged for deterring other aspirants? Why did the civil government following Zia’s 11 years’ unconstitutional rule, not hold trial for treason against perpetrators of injustice and a person (then deceased) for desecrating sanctity of the Constitution? On the contrary, the acts of the dictator were indemnified by the ones who suffered most at his hands.
These questions tend to baffle Pakistani students of constitutional law who are unable to perceive the fact that despite the existence of perfectly viable scenarios liable for prosecution on account of treason in their own country; they are forced to study the case law of other jurisdictions. They are keenly observing changes on the judicial horizon. They are wondering how the apex court bestowed the right of amending Constitution to a usurper, who later on blatantly attacked the same judiciary. Strangely, no proceedings under Article 6 were initiated against General Pervez Musharraf, who repeated history by treacherously removing a democratically elected government, driving the country to the edge of political, social, moral and economic bankruptcy. When Karachi was bleeding and crying on 12 May 2007, this perfidious dictator had the audacity to display his fake strength in a hired public gathering in Rawalpindi. Human beings were ruthlessly massacred in the Lal Masjid episode with media giving live commentary in the aftermath about swarms of insects hovering in areas from where unbearable stench (obviously from rotten copses) was arising, yet he was ceremoniously bid farewell like a hero instead of being arrested for trampling the constitution and ignoring his duty towards the people of Pakistan.
While many examples of high treason are confined to military governments, the civil governments do not stand absolved of acts covered in Chapter VI of Pakistan Penal Code. Corruption, plundering of national wealth, maladministration and bad governance, deserve to be treated as treacherous acts being capable of paralyzing the country—therefore these should also not go unnoticed and unpunished. Whether these acts are in the nature of conniving with a rival country to look the other way when an international agreement is being violated, abetting escape of the culprit even though his name was on the exit control list, conspire to sell the country’s vital assets, forcefully privatizing profit-making national bodies or rendering an institution so worthless that it is unable to fetch a reasonable price or illegally remitting money abroad. Although many of these actions could be said to have been conducted by virtue of the held office yet the fact is that some of these moves have caused irreparable damage to the country and wrecked the self-esteem of its people. What more reasons are needed to commence treason proceedings against all alleged traitors? If nothing more, then appropriate trials should be conducted allowing them open defence of their deeds with the jury (people of Pakistan) giving the verdict of guilty or not guilty.
We are a great, resilient, tolerant and forgiving nation with strong faith in the process of retribution. We are capable of enduring endlessly immense atrocities and soon forgive and forget the persons responsible for our tragedies. This is the principal raison d’être that our woes do not seem to end and we are continuously propelled from one similar situation to another without there being any respite and no hope of seeing any light at the end of the tunnel. We are quick to come out on the streets to redress short term problems like shortage of gas, rise in petrol prices, load-shedding etc but once these are resolved we go back into hiding until we are inflicted with a renewed temporary ailment. Need of the hour is to show the mirror to those who are the real culprits. If an aged and crippled Pinochet of Chile can be proceeded against (by the time of his death on 10 December 2006, about 300 criminal charges were still pending against him in Chile for numerous human rights violations, tax evasion and embezzlement during his 17-year rule and afterwards. Pinochet was accused of having corruptly amassed a wealth of US$28 million or more) why cannot those (many of whom are still alive), accused of similar crimes, be put on trial—for treason?
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The writers, tax lawyers and authors of many books, are Adjunct Professors at Lahore University of Management Sciences (LUMS).