Musharraf on Trial: A Preliminary Critique of the Law of High Treason

By Raza, Syed Sami | Journal of Political Studies, Summer 2014 | Go to article overview

Musharraf on Trial: A Preliminary Critique of the Law of High Treason


Raza, Syed Sami, Journal of Political Studies


Introduction: The High Treason Case Against Musharraf

On March 21, 2011, in a statement, Chief Justice of Pakistan, Iftikhar M. Chaudary, took pride in saying that four years ago the judges successfully resisted the validation of President General Pervaiz Musharraf's coup d'etat (of November 3, 2007). The resistance that C. J. Chaudary initiated snowballed into a large-scale lawyers movement. Within a year the movement was able to topple Musharraf from presidency. Recalling the success of the resistance, the Chief Justice claimed: "Steps taken in the past [i.e., military coups d'état and validations by earlier benches of the Court] resulted in martial laws, but this trend must end now and there is need to put the record straight. Now there will only be the rule of law and supremacy of the Constitution in the country"("No Room Now for Adventurism: Court," 2011). Moreover, he alluded that those who engaged in the disruption of the constitution (1973) can be tried for the crime of high treason in accordance with Article 6.

A more official version of this allusion can be found in the cause célèbre, Sindh Bar Association (2009). In this case, C. J. Chaudary ruled that the proclamation of emergency and promulgation of the PCO, which put the constitution in abeyance, were "unconstitutional, unauthorized, without any legal basis, hence, without any legal consequences"(Constitutional Petition No. 9 of 2009, 2009). Thus Chaudary alludes to the possibility of charging Musharraf for high treason. However, this case was not specifically a high treason case against Musharraf, therefore, C. J. Chaudary was constrained to convict or pronounce punishment. In line with Article 6, he preferred to leave the question of convicting Musharraf to the parliament. The constitution gives authority to the parliament to initiate and decide on the cases of high treason, and that it does so by passing a law.

However, Article 6 is explained further by the 1973 High Treason (Punishment) Act. The Act is enacted on September 26, 1973, a month and half after the ordaining of the constitution, as a supplement to the Article 6. It stipulates punishment for persons guilty of high treason. The punishment is life imprisonment or death. However, the Act has two other significant juridical dimensions. First, it provides that courts can take cognizance of the offences of high treason. Second, that they will do so on the request from the federal government. Accordingly, a petition filed by Pakistan Muslim League-Nawaz (PML-N) during Pakistan People Party's (PPP) government was turned down by the Supreme Court. From the second dimension of the High Treason Act mentioned above, it becomes clear that the petitions of the offences of high treason can be brought to the superior courts. However, still much depends on the courts, how will they interpret the Act, especially in relation to Article 6 of the constitution. Nevertheless, by vesting the power of initiation of high treason cases in the federal government, the Act clearly limits the right to petition of the opposition as well as of the common people.

The election of 2013 has brought PML-N into government. Interestingly, Musharraf came to run in the election but was placed under house arrest. Now it has to be seen whether PML-N takes the challenge of trying Musharraf. The trial is expected to raise some of the difficult constitutional history and theory questions. For instance, what is the historical and juridical basis of the law of high treason? How to justify the relationship between high treason and capital sentence?

In this article, I primarily focus on constitutional history and theory questions. The article is divided into four sections. In the first section, I explore how the concept and law of high treason enters in Pakistan's constitutional discourse. In the second section I give a broader historical and theoretical development of the concept and law of high treason. In the third section, I highlight the relationship between the concepts of the constitution and high treason in Pakistan. …

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