Daily Times

Musharraf’s trial appears to be an unpleasant distraction in the backdrop of the threatening socio-economic challenges Pakistan is facing today. However, should we resurrect the doctrine of necessity once again to deal with unpleasant situations and obnoxious distractions?

Of late, many political leaders like Altaf Hussain and Pervez Elahi are unequivocally supporting their former patron. Many more find openly supporting the retired army chief a bit daunting so they play their helpful role by confusing the national discourse. I was almost shocked when I heard Mr Asfandyar Wali Khan of the Awami National Party reading out lines from a script the other night in an exclusive television talk show. Mr Asfandyar supported Ahmad Raza Qasuri’s floated idea that Musharraf should not be called a traitor but merely someone who subverted the constitution. Whether it emanated from lack of knowledge or on a wink from a shared godfather, it was least expected from the house of redshirts.

The legal doctrine of ‘treason’ is rooted deep in its political origins. At a general level, it is most succinctly defined as a breach of allegiance. As historically European countries were ruled by various houses of hereditary rulers, the notion of treason emerged as a breach of allegiance to the person of the monarch. A stable period of uninterrupted rule by a line of monarchs would often result in peace and progress while regular rebellions would result in civil wars, bringing misery to the ruled. Any plan or attempt to harm the person of the monarch or overthrow the monarchy was therefore considered the gravest of all crimes, thus giving rise to the notion of ‘high treason’, which stood distinguished from acts of petty treason.

In a monarchy, therefore, ‘high treason’ was defined as harming the person of the monarch, as this in turn amounted to damaging the state. In a constitutional form of government, individuals become less important as the constitution replaces the person of the monarch to give stability and strength to the state. Just as the monarch symbolises the soul and essence of the nation in a monarchy, it is the constitution that acts as the living heart in the body of a democratic country. The notion of equating high treason to subversion of a constitution can be traced back to the ancient city-state of Athens. Socrates was tried by the Senate on charges of high treason against the state as he constantly propagated against the Athenian system of popular democracy. Athenian democracy had then recovered, with a great trauma, from the despotic rule of 30 tyrants and therefore it considered any voice of support to potential subversion a grave offence punishable by death.

In European countries, male convicts of ‘high treason’ were beheaded and quartered while women were burnt at the stake. The British notion of high treason found its way into the US constitution as well where it got redefined. As the US faced the gravest threat from armed rebellions against the union, treason appeared in article three of the US constitution as waging a war against the union. We find mention of ‘high treason’ in the legislation of many other countries as well. For instance, Article 39 of the constitution of Ireland defines treason in terms of ‘levying war against the state’, or attempting by force of arms or other violent means to overthrow the organs of government established by the constitution. Similarly, the Crimes Act 1961 of New Zealand defines treason in terms of harming the person of the Queen, waging war against the country and using force for the purpose of overthrowing the government of New Zealand. In the case of Switzerland, the Swiss Criminal Code defines high treason as “changing the constitution of the confederation or of a canton, removing the constitutional authorities of the state from office or making them unable to exercise their authority.”

The upshot of my previous analysis is that the notion of high treason is not pure legal fiction but rather represents the political ideal of a nation that wants to preserve its stability by securing its symbol of permanence. Pakistan was established through a political and legal battle, and the founder of the nation envisaged it to be run on the basis of the rule of law. After many hiccups and tribulations, the political leadership of the country finally came of age and, in 1973, drafted a unanimously approved constitution. The fathers of the constitution, representing national consensus, were firm in their belief that Pakistan had suffered due to autocratic and despotic rulers and only strong adherence to constitutionalism could save it from further disasters. They therefore placed this shared belief in the constitution as article six whose section one, after the 18th amendment, reads: “Any person who abrogates or subverts or suspends or holds in abeyance, or attempts or conspires to abrogate or 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.”

Instead of confusing the national narrative it would be better if we leave it to the special court to decide whether the offence of ‘high treason’ had been committed or not by the former army chief. The doctrine of necessity was shown the exit door with much difficulty. Mr Asfandyar and the like should not open a window to help it stage a comeback.

The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at hashah9@yahoo.com