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.
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!