Monday, April 14, 2014

Pakistan's Top Politicians Guilty of Treason under Article 6?

Many actions of top Pakistani politicians have been and continue to be in clear violation of several articles of the Constitution of Pakistan since 2008. The biggest examples are violations of Articles 62, 63 and 140A. Should they, along with former President Musharraf, be tried for treason under Article 6 of the Constitution? Let's try and examine this question in some detail.

Articles 62:

About half of Pakistani lawmakers do not pay any tax. Tax dodgers and lawbreakers can not be allowed to serve in Parliament under Article 62, clause F of the Constitution of Pakistan. They can not vote for nor serve as Prime Minister or cabinet ministers.

Article 63:

Most of the politicians of all stripes in the national parliament and provincial legislatures steal electricity and gas and do not pay their utility bills. Many have also defaulted on bank loans worth billions of rupees. The constitution (Article 63) says that any defaulter of electricity and gas bill of more than Rs. 10,000 over six months can not serve as a member of parliament. Hundreds of members of parliament, including government ministers, have had electricity cut off multiple times for defaulting.

Article 140A:

Under Article 140A of Pakistan's constitution, each province is required to  "establish a local government system and devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments". All provincial governments in Pakistan have violated this article since 2008, an extended  period of six years. In addition, the top ruling politicians in each province  have also ignored Supreme Court orders to hold local government elections.

Article 6:

Article 6 says that "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". "Any person aiding or abetting [or collaborating] the acts mentioned in clause shall likewise be guilty of high treason.

The constitution bars the courts from intervening in offenses under article 6 unless the parliament asks the courts to hear such cases, leaving it to the discretion of the politicians to pursue such cases.


While it is clear that the courts can not begin Article 6 proceedings against any individual on their own, it is necessary for the courts to pursue violations of Articles 62, 63 and 140A, thereby laying the basis for future prosecutions of current ruling politicians under Article 6 for practically subverting the Constitution and holding key parts of the Constitution in abeyance by virtue of being in power.

The current ruling politicians should be treated no differently than President Musharraf whose decisions while in office in 2007 are now being used to prosecute him under Article 6. President Musharraf's case should serve as a powerful precedent for future cases against all Pakistani rulers, both civilian and military.

Here's a video discussion on the subject:

Sharif's Aides Statements Anger Army; Pak Economy Recovering; Modi Acknowledges Wife from WBT TV on Vimeo.

Related Links:

Haq's Musings

Kudos to Qadri

Musharraf's Treason Trial

Musharraf Wants to Face Trial But Army Opposes it

Vindictive Judges Pursue Musharraf

Musharraf Earned Legitimacy By Good Governance


Akhtar said...

From Pakistan Today by Humayun Gauhar:

The great victor of the Crusades Salahuddin Ayyubi famously said, “The best way to destroy a country is to make its people disenchanted with their army.”


No country; no Asif Zardari. No Asif Zardari, country remains.

No country, no Nawaz Sharif. No Nawaz Sharif, country remains.

No country, no constitution. No constitution, the country remains to craft a new and better one.

No country, no judiciary. No judiciary, no country.

No country, no army. No army, no country.

That is the unavoidable equation whether you like it or not. It’s as simple as that. So those who try to degrade their army are wittingly or unwittingly committing high treason.

Don’t fall for the rants of politicians with grudges, large parts of the not-so-independent media, disgruntled, frustrated retired military officers with axes to grind, bureaucrats and judges become holier than thou after retirement having done their considerable bit to prop up civilian and military dictators, limited half-baked lawyers, witless analysts egged on by semi-educated anchors trying to improve their ratings. They are doing the army down not realising that they are weakening the State. They should think again. No one questions their patriotism, but one certainly questions their wisdom. No one says that the army – or any institution for that matter – should be allowed to run rampant. It should remain in its domain, but you cannot weaken and trash it simply because its domain includes saving the country from external and internal enemies. If ‘elected’ governments did their duties diligently, honestly and efficiently and within the law, so would the army. Nothing weakens and destroys an army more than having to run the country with absolute power. A government’s best policy should be to rule well and not give the army any reason to transgress. Will they understand? They have not in 67 years. Little chance they will understand now. They don’t even understand the hard way.

Our rulers don’t understand democracy or rule of law. They don’t understand that God’s vicegerents the people are the repository of secular power, not this government or that. Getting elected doesn’t mean the country becomes your fief and you its overlord to do with as you please and go on a looting, lying spree. The moment a government deviates from its mandate it loses legitimacy.
The army should understand its part in bringing Pakistan to its knees. Our politicians of the last 50 years are all products of army rule, not of a healthy political process. It doesn’t take them long to turn on their fathers and forget their political pedigree. That is where I hold the army culpable. Stop it and let the natural political process produce politicians and leaders from bottom up. Politicians produced by the army become bad clones of generals. One can never escape one’s paternity.

Fazal said...

Yes indict them along with Musharraf, Iftikhar etc.

Fail to understand the connection between punishing the criminals and the armed forces. Sparing the "holy cows of Pakistan" punish judges, parliamentarians. Do something.

Ali P. said...

Any one who commits a crime of any nature and of any stature should be tried & punished in accordance with the Law (preferably by Islamic Law) in Allah's eyes all are equal

Fahad said...

Humayun Gauhar's argument is bullshit! without a constitution and you dont have a country!!.. what is a country without a constitution ? without a rule of law? just a loosely defined tribal group, associate by a common language, which in Pakistan's case is not possible.. so without constitution you have NOTHING.. and to clarify.. you can have a country and still go after a corrupt army chief.. when a country has the legal institutions to do that..then this is a great country! please differentiate between an ex-army chief and the army.. any case against Musharraf is not a case against the army..

Riaz Haq said...

Fahad: "this is bullshit! without a constitution and you dont have a country!!.. what is a country without a constitution ? without a rule of law? just a loosely defined tribal group, associate by a common language, which in Pakistan's case is not possible.. so without constitution you have NOTHING.. and to clarify.."

"The Constitution is not a suicide pact" is a phrase in American political and legal discourse. The phrase expresses the belief that constitutional restrictions on governmental power must be balanced against the need for survival of the state and its people. It is most often attributed to Abraham Lincoln, as a response to charges that he was violating the United States Constitution by suspending habeas corpus during the American Civil War. Although the phrase echoes statements made by Lincoln, and although versions of the sentiment have been advanced at various times in American history, the precise phrase "suicide pact" was first used by Justice Robert H. Jackson in his dissenting opinion in Terminiello v. Chicago, a 1949 free speech case decided by the U.S. Supreme Court. The phrase also appears in the same context in Kennedy v. Mendoza-Martinez, a 1963 U.S. Supreme Court decision written by Justice Arthur Goldberg.

Riaz Haq said...

Here's a Op Ed piece by Ayaz Amir in The News on civil-military tensions:

We’ve seen it all before…in that year of excitement, 1999. This is the depressing thing about this whole affair, the story line being repeated, because it suggests (a) that Nawaz Sharif has learnt nothing from the past, that he refuses to forgive and forget; and (b) that the army has not shed its superiority complex, its old, exalted view of its role in the state.

A third conclusion also suggests itself: that our political class is less than sophisticated when it comes to analysing issues of power, sentiment and false emotion often overriding sober calculation. Take the immediate source of the present standoff, the Musharraf trial. It takes little genius to figure out that given Pakistan’s other problems this was hardly the most propitious time for Nawaz Sharif to settle scores with his one-time nemesis. Yet he has pressed on with it, setting the stage for a confrontation with his army chief he had handpicked only a few months ago.

There is no shortage of eager souls chattering that this is not about settling scores but all about high principle, the supremacy of the constitution, etc. Such a claim would be more convincing if the trial process was not so selective, focusing only on Musharraf and not his companions in power. It is also absurd in that it takes issue with the minor sin of the Nov 2007 emergency, which lasted for barely a month and a half, while turning a blind eye to the original sin of the coup d’etat of Oct 99 which ushered in long years of military rule.

Also at work here is historical amnesia, in that Nawaz Sharif’s past as a loyalist and indeed a political product of the worst dictatorship in Pakistan’s history – Gen Zia’s – is conveniently overlooked. The Sharif business and political empire would have been impossible without Zia.

There is also the small matter of the ISI distributing funds squeezed from a private banker to a select group of politicians in the 1990 elections. On this list the name Sharif also figures, even if with the change of political seasons we are to believe the recantation of the banker in question who has suddenly discovered that his memory had played tricks on him and that the Sharif on his list was a Sharif owning the Tulip Hotel on the River Jhelum next to Sarai Alamgir.

The purpose here is not to rake up the past but to say in all humility that when one’s own cupboard, indeed the Herculean stable of one’s past, is full of rattling skeletons one might go easy in mounting the high steed of principle.

It is this selectivity, this whiff of vendetta about the Musharraf trial, which has almost forced the army’s hand on an issue that, left to itself, it would have wished had never happened.

On this score we should be clear: the army was not looking to pick a fight with the government. It has other things on its plate, like a full-fledged insurgency in which thousands of its men have died. It did not want the distraction of a Musharraf trial. It is the PM with his long memory, his inability to forget, who from out of nowhere has conjured up this confrontation – a confrontation, it bears repeating, the army was not seeking.

Into this tangled skein has also entered a perception of betrayal, the army feeling that it was double-crossed when Musharraf appeared in court and was formally indicted. Apparently, there was some sort of an agreement at a high enough level that once this happened the way would be cleared for Musharraf to fly off to Dubai, the Riviera of the Pakistani elite. The court placed no obstacles and it was up to the interior ministry to remove the restriction. An application was submitted, as per the previous understanding, but there was a change of heart on the part of the government and the permission was not given....

walter said...

The landed quasi-feudal elite - that the people of Pakistan, admittedly under duress, have been 'permitting' to continue to deprive them of their God-given rights to climb out of tyrannical poverty - needs to be put in the place it deserves, particularly after more than three generations of corrupt power that it has been prospering under. A body of selfless stalwarts, I repeat self-less stalwarts, should stand up and accomplish this with the multitude of the country's deprived commoners as their moral strength. Thereafter the country should modify its present constitution to control unhealthy extremisms based on unthinking conservatism. The people of this country now have to give evidence of their intrinsic valor.