REVISITING PAKISTAN'S TREASON LAW

By:
RAI MUHAMMAD SALEH AZAM

In Pakistan, high treason is the ultimate criminal offence, which is punishable with either death or life imprisonment. The legal framework for high treason comprises the following laws:

(i) Article 6 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"); and

(ii) The High Treason (Punishment) Act, 1973 (the "Treason Act").

Additionally, Chapter VI (Offences against the State), comprising Sections 121 to 130, of the Pakistan Penal Code, 1860 (the "PPC") prescribes certain criminal offences against the State without using the nomenclature of “treason" or "high treason."

Article 6 of the Constitution reads:

6. High Treason.

(1) 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.

(2) Any person aiding or abetting or collaborating with the acts mentioned in clause (1) shall likewise be guilty of high treason.

(2A) 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-Shoora (Parliament) shall by law provide for the punishment of persons found guilty of high treason.

Section 2 of the Treason Act, promulgated pursuant to Article 6(3) of the Constitution, reads:

"A person who is found guilty--(a) of having committed an act of abrogation or subversion of a constitution in force in Pakistan at any time since the twenty-third day of March, 1956; or (b) of high treason as defined in Article 6 of the Constitution, shall be punishable with death or imprisonment for life.

Furthermore, Section 3 of the Treason Act provides: “No Court shall take cognizance of an offence punishable under this act except upon a complaint in writing made by a person authorised by the Federal Government in this behalf. In other words, only the Federal Government may charge someone with high treason.

It is, therefore, clear that, in Pakistan, high treason is extremely limited in its scope, being restricting to incidences of abrogation, subversion, suspension or holding in abeyance of the Constitution and the aid, abetment or collaboration of the same.

Apart from being limited in its scope and ambit, the high treason law in Pakistan is also severely flawed and inadequate. Treason comes in many forms and degrees. Under the current legal framework, Article 6 and the Treason Act, seemingly, can only be employed against those who overthrow or attempt to overthrow or aid in the overthrow of a government duly formed under the Constitution. However, overthrowing of a duly-elected government is only one form of treason. Article 6 and the Treason Act fail to prescribe as treason other, more serious, acts that should fall under the ambit of treason, especially high treason.

High treason, as a concept, is an act against the State, not a government. Abrogation of the Constitution or the overthrow of a government are only two of many perceivable acts of treason. Indeed, there are certain acts that can be perceived to be more serious than abrogation of the Constitution or overthrowing a government, such as waging war against the State.

A major flaw in the treason law of Pakistan is that it does not distinguish between an act of treason simpliciter and the more serious, indeed graver, act of high treason. High treason is a term usually reserved for an act of aggression or war against the State as opposed to the overthrow of a government within the State. A distinction ought to be made between a group of patriotic citizens or military personnel overthrowing a government and an unpatriotic citizens waging war against the state in collusion with an enemy state. The former would be guilty of treason simpliciter whereas the latter would be guilty of high treason. The distinction not just lies in the form but also in the intent of the perpetrators. A group of senior military officers may be driven by patriotic impulses and love for their country, misguided arguably though they may be, when they overthrow a duly elected government. Whereas persons waging war against the State would be driven by animosity towards the State. In such circumstances, it would be incorrect, indeed unfair, to place both perpetrators in the same basket and prescribe for both the same punishment. The crime of an otherwise patriotic, albeit misguided, Pakistani Army Chief overthrowing an elected government with the intent of introducing better governance or safeguarding national security cannot be equated to the crime of a person, who, is anti-Pakistan and waging war against Pakistan with the intent of harming Pakistan's territorial integrity.

Such a distinction between acts of treason and high treason is present in the treason laws of other countries, including Canada and Germany. It is, therefore, suggested that Pakistan's treason law should distinguish between acts of treason simpliciter and acts of high treason and prescribe a lesser penalty, such as life imprisonment, for the former and a greater penalty, such as death, for the latter.

Although a discussion of Chapter VI of the PPC is beyond the purview of this article, suffice to state that some of the criminal offences contained therein, such as waging war against the State, etc. ought to be deemed acts of treason or high treason and should be imported into Article 6 with more severe punishments than provided under the PPC. The crimes of treason and high treason ought to, befittingly, arise from the Constitution, rather than the PPC.

In view of the above, it is proposed that the current Article 6 should be replaced altogether with the following new Article 6:

6. High Treason and Treason. (1) A citizen of Pakistan, or any person for the time being in Pakistan, shall be guilty of high treason if such person.--

(a) harms or attempts to harm or calls for the harming of the territorial integrity of Pakistan; or

(b) wages war or attempts to wage war or calls for the waging of war against Pakistan or its Armed Forces; or

(c) engages or attempts or conspires to engage in any insurrection or insurgency against Pakistan; or

(d) engages or attempts or conspires to engage in any act of espionage or sabotage against Pakistan; or

(e) assists or conspires with or attempts to assist or conspire with a foreign state or its agents in any act of espionage against Pakistan; or

(f) assists an enemy at war with Pakistan, or any enemy against whom Pakistan 's Armed Forces are engaged in hostilities, whether or not a state of war has been declared.

(2) Any person aiding or abetting or collaborating with the acts mentioned in clause (1) shall, likewise, be guilty of high treason.

(3) A person who is found guilty of high treason shall be punished with death.

(4) A citizen of Pakistan, or any person for the time being in Pakistan, shall be guilty of treason if such person:-

(a) 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; or

(b) overthrows or attempts or conspires to overthrow the Federal Government or a Provincial Government by use of force or show of force; or

(c) attacks or attempts or conspires to attack Parliament (Majlis-e-Shoora) or a Provincial Assembly or the Supreme Court or a High Court by use of force or show of force; or

(d) attacks or attempts or conspires to attack a military base or strategic installation or any building or installation under the superintendence or control of the Armed Forces or the Ministry of Defence by use of force or show of force; or

(e) assassinates or attempts or conspires to assassinate the President, Prime Minister, Chief Justice of Pakistan, Chairman of the Senate, Speaker of the National Assembly, Governor, Chief Minister or Chief Justice of a High Court or the Chairman of the Joint Chiefs of Staff Committee, Chief of the Army Staff Chief of the Air Staff or Chief of the Naval Staff; or

(f) without lawful authority, communicates or makes available to an agent of a foreign state, any military, strategic, scientific or economic secret, information, document, drawing, photograph, plan, model, article or note that he knows, or ought to know, may be used by that foreign state for a purpose prejudicial to the national security, defence or economic interests of Pakistan; or

(g) commits or attempts or conspires to commit any act or omission, or delivers or attempts or conspires to deliver to an agent of a foreign state any undertaking or promise to commit any act or omission, for a purpose prejudicial to the national security, defence or economic interests of Pakistan.

(5) Any person aiding or abetting or collaborating with the acts mentioned in clause (4) shall, likewise, be guilty of treason.

(6) A person who is found guilty of treason shall be punished with life imprisonment.

(7) Acts of high treason or treason shall not be validated by any Court, including the Supreme Court or a High Court.

(8) Majlis-e-Shoora (Parliament) shall, by law, provide for the procedure for the prosecution of persons accused of and found guilty of high treason and treason.

In the context of the current multiple insurgencies and multidimensional security challenges being faced by Pakistan and the fourth generation asymmetrical war in the form of terrorism being waged against Pakistan at the behest of foreign powers and their Pakistani and foreign agents, Pakistan's treason laws are inadequate and insufficient and need to be strengthened and upgraded to meet the new existential challenges and threats being faced by the Pakistani State. Pakistan cannot afford to limit the definition of treason and the punishment thereof to acts of overthrowing elected governments. A wider definition, as provided above, needs to be adopted. Treason laws need to be employed to not just safeguard elected governments, but, more importantly, to safeguard the Pakistani State.

The writer is a High Court Advocate based in Lahore.