Daily Times

In the course of the ‘Memogate’ scandal, a lot has been written and said by shrill-voiced commentators on the application of Article 6 of the Constitution of 1973. To me, this comes as a surprise because there is no way that anyone who has read Article 6 can imagine that it can be applied in any form to the Memogate scandal.

What does Article 6 say? It reads:

“High treason. (1) Any person who abrogates or subverts or suspends or holds in abeyance, or attempts to hold 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. (2) Any person aiding and abetting or collaborating the acts mentioned in clause (1) shall likewise be guilty of high treason. (2-A) 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-shura (parliament) shall by law provide for the punishment of persons found guilty of high treason.”

This has further been cemented by the High Treason (Punishment) Act 1973. It is clear from the reading of Article 6 that it applies to any person who, by force or other unconstitutional means, tries to abrogate, subvert, suspend or hold in abeyance the constitution. Now let us consider if in the contents of the infamous memo there is anything that attracts Article 6. It is my contention, based on whatever little I know of the law and constitution, that there is nothing unconstitutional or illegal about the memo. It does not attempt to subvert the constitution or abrogate it or hold it in abeyance. Instead, on the face of it, it is a patriotic attempt to safeguard the constitutional hierarchy that is the bedrock of the Pakistani constitution, which envisages civilian supremacy.

One is reminded of the time a number of senior army officers complained to Quaid-e-Azam Muhammad Ali Jinnah that the Pakistan army and air force were led by British officers loyal to the crown. Jinnah responded with a stern reminder to those officers that, in Pakistan, civilian rule is supreme and decisions taken by the civilian authorities, including appointment of top officers, cannot and should not be challenged by military officers. That same reminder needs to be given to Messrs Kayani and Pasha immediately. Both these gentlemen, as career officers of the Pakistan Army, have no locus standi in alleging ‘high treason’ on the constitutional head of state, government or any appointee of the civilian government acting under the orders of a constitutional chain of command. High treason cannot be committed by a superior command against a subordinate institution, which is what the military is under the Pakistani constitution. The army is not sovereign. The people of Pakistan are and they have chosen to exercise this sovereignty through the framework of the current constitution.

Here I must point out that I do not hold any brief for Zardari, Gillani and Haqqani as individuals. Indeed, it is the weakness of the civilian government, emanating directly from lack of any moral authority by the present government that allegedly necessitated the memo in the first place. The appeal by a sovereign constitutional government of a sovereign nation to the military of another sovereign nation to help rein in its own military is indicative of a national malaise, one that is caused by a justifiable fear that the military will take any opportunity to squeeze the constitutional civilian government. If anything, this memo indicates that the Pakistani military has lost the confidence of its constitutional superiors. That those constitutional superiors are not made of the stuff that Jinnah was made of is the reason why they are unable to command the requisite authority needed to rein in the military and make it subservient to the constitution of Pakistan. This is the reason one wishes to see a strong upright politician like Imran Khan in charge who would have the necessary firmness to bring the military in line with the constitution. Weak politicians with skeletons in their closets are hardly in any position to challenge the military’s supremacy.

The more disturbing element of the alleged memo is this belief that the Pakistani military chief reports not to the civilian government housed in the Prime Minister’s Secretariat and the Presidency, as he should under the constitution, but rather the Pentagon. Make no mistake; it is the military that needs to answer for this accusation, not the civilian government. Why did General Zia conspire with the CIA to overthrow Bhutto? Why did the army not rise up against that clear act of high treason and instead went along with a patent unconstitutional and unpatriotic act of high treason by a usurper who set Pakistan back by a few hundred years? If there is even a kernel of truth to the accusation that the military continues to play the dirty games it played in the 1990s under the auspices and good offices of the likes of Asad Durrani and others, then it is the military leadership that will find itself at the receiving end of Article 6, not Husain Haqqani or Asif Ali Zardari. Of course, the army can just overthrow the government and wrap up the constitution but that would only confirm high treason, which many tin-pots have committed at will in Pakistan’s history. Instead, Kayani can voluntarily submit the military to the constitution and create a sense of loyalty in the army to the constitution. In that way, he will be remembered in Pakistan’s history as a great and patriotic general who preferred his country over narrow institutional interests that, without exception, have clashed with the greater national interest.

The bottom line is that, as Pakistanis, we want a strong patriotic army that safeguards our constitutional system of government and not a mercenary army that reports to the Pentagon. That is what Jinnah would have wanted and that is what every Pakistani citizen who wants to see Pakistan as a successful and strong democracy wants to see.

The writer is a lawyer based in Lahore. He is also a regular contributor to the Indian law website http://mylaw.net and blogs on http//globallegalforum.blogspot.com and http://pakteahouse.net. He can be reached at yasser.hamdani@gmail.com