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May 19, 2018

Can Nawaz be tried under Article 6?


May 19, 2018

Can former prime minister Nawaz Sharif be tried under Article 6 of the 1973 Constitution over his highly irresponsible statement regarding 2008 Mumbai attacks, as being demanded by politicians and experts, if one goes by the book. Charges under Article 6 are very specific. It is high treason, but it deals with abrogation or subverting the Constitution and not even with violation of the Constitution.

Besides, there are clauses under Pakistan Penal Code (PPC), which deal with sedition, or the Official Secret Act (OSA). Even they do not apply here. So, he may not be liable at the moment particularly when it comes to sedition and the OSA, which are very serious charges with capital punishment, if found guilty.

Interestingly, some legal experts say Nawaz Sharif’s statement, interview and expression can fall under Article 19 of the Constitution which, though allows freedom of expression to every citizen, it is subject to reasonable restrictions, imposed by the law and that include integrity, security and defence of Pakistan.

The best way is to deal statements or interviews, accusations and charges with counter-statements, like the one coming from the National Security Committee (NSC), unless someone really discloses or leaks an official secret, which in this case does not apply.

All this does not absolve Sharif of his highly irresponsible statement, particularly because it has come from the three-time prime minister. While his party and the government including the prime minister are in utter confusion, the military leadership through the NSC, had put forward their deep regret, disappointment and condemnation of the statement, which has hurt Pakistan's national interest.

While Sharif is facing severe criticism from the opposition parties, his statement has also put his own party and government in trouble. But, one expects from the politicians and experts including some defence analysts to be factually and legally correct when they demand his trial under Article 6.

What was most surprising that even the assemblies had passed resolutions, demanding imposition of Article 6 on Nawaz Sharif? They had even passed such a resolution against Muttahida Qaumi Movement (MQM) founder Altaf Hussain for his August 22, 2016 speech, which also did not fall under this particular Article.

Therefore, a sedition case was registered against the MQM founder, as he was also charged with provoking his supporters for waging war against the state. So, it will really be interesting to watch if any case under the abovementioned articles or clauses is registered or not. Politically, Nawaz Sharif has certainly damage himself, which in no way would be helpful for him or for his party.

The authors of Article 6 were well aware of the fact how, in the past, politicians faced charges of treason and sedition. So, they inducted this article for specific purpose.

The late Abdul Hafeez Pirzada, author of the 1973 Constitution, once told the writer that the spirit behind Article 6 was to ensure that in future the usurpers would not be able to remove the elected governments or prime ministers through unlawful means. This clause was particularly included in the backdrop of the Asma Jillani case in which the dictator, for the first time, was called a usurper. Yet, the Constitution was abrogated, suspended or put in abeyance despite this article and the SC judgment in Asma Jillani case mainly because the superior PCO judiciary validated such actions. The role of the hand-picked parliament particularly in 2001 was also not very different.

Only once in 2013, this article was invoked and enforced on General (retd) Pervez Musharraf for his second unconstitutional action on Nov 3, 2007, since the action was not validated by the parliament. Events which followed led to his safe exit, apparently under the court orders, but those who are well aware of the events know as to what exactly happened.

What one can say if today a demand for Article 6 imposition on Nawaz Sharif comes from the man who himself is an accused under the said article and went to Dubai on the court permission for a medical treatment. On Wednesday, he announced he would return to the country during the interim government as he did not expect justice under the PML-N government.

Nawaz Sharif's statement has certainly created stir in the country and the issue is under serious debate, both in the media and in the parliament. Most of the legislatures and some top politicians had demanded Sharif's trial under Article 6, as they believe he had committed high treason. Some had even filed petitions in the courts, while others had submitted applications with their respective police stations for registration of cases.

There is no doubt that his statement about 2008 Mumbai attack has not only damaged and hurt country's interest but also put his own party and government in an embarrassing position, which is quite visible.

In Pakistan's political history, politicians had been tried under sedition or under Official Secret Act, and only once a case under Article 6 was registered and that was against a military dictator.

What is Article 6, and can it be applied on Nawaz Sharif? If not, can any case be registered against him over his statement? Some legal experts even doubt that he could even be tried under the Official Secret Act or it falls in the category of sedition.

A person can be tried under Article 6, high treason, under three clauses.

(1) Any person who abrogates or attempts or conspires to abrogate, subvert or attempt or conspires to subvert the Constitution by the use of force or by other unconstitutional means, shall be guilty of high treason.

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

(3) Majlis-e-Shoora (Parliament) shall, by law, provide for the punishment of person found guilty of high treason.

Even sedition or a case under the Official Secret Act, which in the past had been invoked several times against different people including politicians and even journalists, does not apply here, legal experts says.

After passage and enforcement of the 1973 Constitution, the superior judiciary, under the law of necessity, bailed out two former army chiefs, the late General Ziaul Haq in 1981, and General (retd) Pervez Musharraf in 2001, for their military actions and coup. The only case registered under Article 6 was in 2013, against Musharraf for his actions of Nov 3, 2007.

In 1974, the government imposed a ban on the then popular left wing party, National Awami Party (NAP), led by veteran politicians like the late Khan Abdul Wali Khan, the late Mir Ghous Bux Bizenjo, Sardar Attaullah Mengal and others, and got them arrested under sedition charges.

The sedition case was even registered against veteran Sindhi separatist leader, the late GM Syed, who once was the author of Pakistan resolution, moved in the Sindh Assembly. But, later on he demanded establishment of the “Sindhu Desh”. He remained under house arrest and in prison for many years, but it is also a historic fact that the late General Zia had good relations with him as they both have a common enemy, Zulfikar Ali Bhutto.

So, General Zia used both NAP leaders as well as Jeay Sindh and later on the MQM to prolong his military rule.

Another case of sedition which lasted for three years was lodged against Communist leaders like the late Jam Saqi, the late Prof Jamal Naqvi and others, who were later convicted by a military court.

Keeping legal and constitutional debate aside, it is a responsibility of all citizens, particularly those who remained at the top positions, to show complete restraint, and not to issue any statement which could have far-reaching implications for the country, particularly for external front as has happened in the case of Nawaz Sharif.

Freedom of expression is the right of every citizen, whether he or she is a politician, civil or military ruler, but all this falls under ‘reasonable restrictions’.

  The writer is a senior columnist and analyst of Geo, The News and Jang

Twitter: @MazharAbbasGEO