Did Maulana Fazlur Rehman commit treason?

An allegation of treason should not be made lightly. Especially not by the prime minister of a country against a political opponent. It takes away from the gravity of the only criminal offence proscribed in the Constitution of Pakistan. It also equates a political opponent with this country’s rogues’ gallery of past authoritarian rulers.

But most importantly, throwing around an allegation of treason against politicians critical of the ruling party delegitimises another part of the Constitution: the part that guarantees the freedom of speech.

All these factors should have been weighed by Prime Minister Imran Khan before he expressed his desire to initiate treason proceedings under the Constitution against Maulana Fazlur Rehman for his Azadi march last year.

The prime minister believes that the Jamiat Ulema-e-Islam-Fazl’s (JUI-F) march demanding the resignation of the Pakistan Tehreek-e-Insaf (PTI) government, along with its eventual declaration that it had received a guarantee that the government would be disbanded in 2020, amounts to treason. The prime minister is mistaken. Treason, under the Constitution, does not encompass the penalisation of speech critical of the government.

The irony of the prime minister alleging that JUI-F committed treason should not be lost on anyone who has observed the PTI’s rise to power. Khan himself staged a much longer protest once upon a time in Islamabad.

Back then, it was Khan, standing atop a container, defiant, calling for the overthrow of the Pakistan Muslim League-Nawaz (PML-N) government. That protest eventually added a dash of violence to the mix as well when the Pakistan Television (PTV) headquarters were vandalised. The JUI-F protest, on the other hand, regardless of what it stood for, did not result in any violence. So, by the prime minister’s own logic, if the JUI-F’s protest is treasonous, then the PTI’s surely was.

Lucky for Khan that neither of these protests can be called treasonous under Article 6 of the Constitution.

There are two ways of understanding Article 6. First, through its text, and second, through its historical context. Through neither of these two lenses does a peaceful protest fall within the definition of treason.

Looked at textually, Article 6 criminalises the overthrow of our constitutional system of government through the use of force. It thus has two elements: the constitution must be subverted (or there must be an attempt at this), and, this must be done through the use of force or other unconstitutional means.

The JUI-F neither subverted our constitutional system of government, nor did it attempt to do so. Its demand was that the PTI government be disbanded and fresh elections be held. This in no way amounts to subverting our constitutional system.

Neither did it attempt to do so through violent means. Had it tried to seize control of the machinery of government through force we would be having a different conversation, but again, this situation did not play out. Nor was it likely to since the JUI-F hardly had the numbers or the capacity to launch a coup.

Finally, the JUI-F was not using any unconstitutional means. In fact, it was exercising a right to protest granted in Article 19 of the Constitution. Therefore, the JUI-F was functioning within the constitutional framework.

From a reading of the mere text of the Constitution the JUI-F did not commit treason.

It is ignorant of our country’s constitutional history to flaunt the word ‘treason’ so casually. Article 6’s historic context was to prevent a military coup. The framers of this country’s Constitution had seen this nation endure martial law and wanted to build within the Constitution a mechanism to deter it from happening again. As Justice Shahid Karim cited in his judgment convicting Pervez Musharraf of treason, the report of the Constitution Committee presented to the National Assembly in 1972 specifically stated that the offense of treason was being introduced to eliminate the possibility of the Constitution being abrogated through a military coup.

This historical context helps us in understanding the limitations around the offence. Only something akin to a military overthrow of a civilian government was meant to come within the scope of Article 6.

Those who drafted the Constitution were perhaps aware that if the meaning of Article 6 was left vague it would result in exactly the kind of political victimisation that the prime minister has his eyes on. In the words of Montesquieu,

“If the crime of treason be indeterminate, this alone is sufficient to make any government degenerate into arbitrary power.”

Quite similarly, Chief Justice John Marshall of the Supreme Court of the United States (US) once warned,

“As this is the most atrocious offence which can be committed against the political body, so it is a charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power.”

Therefore, looked at from its historical context, Article 6 was never meant to capture protests such as the PTI’s dharna or the Azadi march within the net of treason.

In a constitutional democracy, every citizen is promised the right to speak freely, even those whose views we might abhor. Much like the prime minister, I had little support for the Azadi march, and even less sympathy for the Maulana’s desire to regain political relevance. I see his sudden passion for civilian supremacy as opportunistic. That does not mean he does not have the right to protest under the Constitution and it certainly does not make him a traitor under the Constitution.

It is time we limit the use of the word ‘treason’ to situations where it actually applies: the trial of absconding dictators.

[poll id="803"]