In the recent
past during initial phase of Musharraf’s trial, Chaudhry Shujaat Hussain had
launched a campaign to remove the word “Ghaddari (High Treason)” from Article 6
of the Constitution and other related provisions as according to him, firstly,
the offence envisaged therein did not fit in the universally legislated and
interpreted definition of treason or “high treason” and secondly that to name
an ex-Army Chief of a nuclear power as Ghaddar (High Traitor), did not sound
pleasant in its over all impact. Any one, disagreeing with Mr. Shujaat may say,
a Ghaddar having committed the offence of Ghaddari shall by all means be named
and called Ghaddar irrespective of the position he held earlier! Nevertheless,
the first part of his preposition has raised an academic and legal question
regarding exact literal and legal meaning and definition of Ghaddari (High
Treason) and to apply the same in its all four corners on the acts of treason
allegedly committed by Parvez Musharraf.
The question
being purely of an academic and legal nature, calls for exploring the exact
literal and legal meaning of Ghaddari and to discriminate the same from
Baghawat (Rebellion, Insurgence or Mutiny), if the two are not synonyms as,
very often they seem to be highly mixed up and confusing. Everybody knows that
in many cases, Baghis from one group are termed as Ghaddar by the other.
Ghaddar of the other is Hero or Baghi Hero of the first one. Liberation
movement in India in 1857
was termed as GHADAR by the British Empire but
a book was written on it titled as ASBAB-E-BAGHAWAT-E-HIND. Likewise Subhash
Chandra Boss and Sheikh Mujeeb-ur-Rehman find their place in their capacity as
such in the recent past history of the sub-continent. One called them Ghaddar
and the other as Hero!
The difficulty for every one to discriminate and
differentiate between the two words or terms is their ordinary dictionary
meaning. In Urdu, the two words Baghawat and Ghaddari do carry their distinct
meaning but in English, several words like treason, disloyalty, insurgence,
rebellion, betrayal, treachery etc., are available but none of them clearly
separates Ghaddari from Baghawat.
Baghawat means an organized rebellion aimed at overthrowing
a constituted GOVERNMENT through the use of subversion and armed
conflict while Ghaddari has no concern with the GOVERNMENT. Ghaddari
in its political aspect is an act of subversion against the STATE
whether armed or not. Simultaneously it can even be against an individual
including a person in authority. As against this, Baghawat can hardly be
against individuals. Very carefully speaking, Ghaddari may be described as a
surreptitious betrayal in a conspiring manner of the confidence of a person who
has been persistently made to have firm faith in the traitor through his words
and conduct.
Ghaddari in England has been considered as the crime of
disloyalty to the Crown, persons carrying his orders, family members of the
King, levying war against the sovereign and adhering to the sovereign's
enemies and giving them aid or comfort. These all constitute one single
word “State” because in England
King is State and not Government.
An act of Ghaddari must necessarily endanger the security
of the State and not the government. History shows that Ghaddari being the most
serious of offences, was often met with extraordinary punishment (hanging,
drawing and quartering), because it threatened the “security of the state”.
It may be interesting to note that in England , the offence of Ghaddari is limited to
the disloyalty to the Crown or the State; it has nothing to do with the
constitution as there is no written constitution of the British
Empire . Ghaddari is therefore different from Baghawat for the
above among many other reasons. One more reason however needs to be added that
Ghaddari is always and every where considered the most heinous of offences
while Baghawat, according to Black’s Law Dictionary, is not necessarily to be
taken in a bad sense as the same, though extralegal, may be just and timely in
itself.
Now, in the
light of the above discussion, we revert back to the earlier referred campaign
of Ch. Shujaat to remove or substitute the words HIGH TREASON from Article 6 of
the constitution. If Ghaddari or for convenience sake, treason, was meant as an
act of subversion against the State to the extent of endangering its security
or joining hands with its enemies then I am afraid, both the acts of Parvez
Musharraf i.e. of 12th October and 3rd November can hardly fit in the above
universally admitted definition of treason. I am speaking of the global
definition of the same and not as defined in our constitution. The definition
of treason in our constitution has been made in the following words:
Article 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.
It is eminently explicit that the above definition does not speak of something that might endanger the security of the State or empower or strengthen the enemies of the State or even over-throwing a legally constituted government of the State. It has imported and added an altogether new definition to the term “treason” confining it to offences against “constitution” and not against the State or the Government.
It is eminently explicit that the above definition does not speak of something that might endanger the security of the State or empower or strengthen the enemies of the State or even over-throwing a legally constituted government of the State. It has imported and added an altogether new definition to the term “treason” confining it to offences against “constitution” and not against the State or the Government.
State remains
one and the same though it may change its size and shape. Governments change
frequently. Constitutions are made by legislature. Parliament besides creating
constitution has the power to amend the same and the Apex Court supervises such amendments to
satisfy itself as to whether the proposed amendment is not in conflict with the
fundamental spirit and basic structure of the constitution. Our lawmakers,
while formulating Article 6, brought the Constitution at par with the State. No
doubt an offence against constitution is by all means an offence but endangering
the security of the State or joining hands with its enemies is an offence far
more grave and heinous. This act of our lawmakers to include the offences
against Constitution in the definition of “high treason” seems, if not highly
at least a bit exaggerated and in conflict with the over all admitted
definition of the same.
Ch. Shujaat wanted to bring a balance in the Constitution and insert therein clear and distinct definitions of offences against the State and offences against the Constitution. Intention of Ch. Shujaat appeared bonafide and his plea had force that we must improve our Constitution and endeavor to make it a fool proof document. His drive therefore should not have been so stretched as to give it a meaning of attempting or aiding to get the General acquitted for, this is not the only case in which Musharraf is involved. This is no secret that he is still accountable in many other high profile cases including assassination of Shaheed Mohtarema Benazir Bhutto and Shaheed Akbar Bugti and in those cases, the proposed amendment in constitution will be of no advantage to him. Provision for amendments is there in the Constitution so what if we ponder a little over what Ch. Shujaat was saying and think upon it in the greater interest of the State and Constitution; but for this, we’ll have to think from our minds and not from our hearts!
Ch. Shujaat wanted to bring a balance in the Constitution and insert therein clear and distinct definitions of offences against the State and offences against the Constitution. Intention of Ch. Shujaat appeared bonafide and his plea had force that we must improve our Constitution and endeavor to make it a fool proof document. His drive therefore should not have been so stretched as to give it a meaning of attempting or aiding to get the General acquitted for, this is not the only case in which Musharraf is involved. This is no secret that he is still accountable in many other high profile cases including assassination of Shaheed Mohtarema Benazir Bhutto and Shaheed Akbar Bugti and in those cases, the proposed amendment in constitution will be of no advantage to him. Provision for amendments is there in the Constitution so what if we ponder a little over what Ch. Shujaat was saying and think upon it in the greater interest of the State and Constitution; but for this, we’ll have to think from our minds and not from our hearts!