Article 4.

Article 4 envisages two categories of persons who are entitled to right to be dealt with in accordance with law: One, citizen of Pakistan: wherever he may be (whether in Pakistan or abroad) and, second, every person: for the time being in Pakistan (only in Pakistan, may not be while he is outside of Pakistan).

Any public functionary or person taking any action affecting the life, liberty, body, property or reputation of a person, must rely on some law to justify his action.

  • Thus a policeman or jailer must be equipped with legal authority to arrest/imprison a person or,
  • a person who interferes with another person’s right to carry on his trade, profession or business with a legal power to regulate or stop such activity.
  • Similarly a person requiring another person to do something e.g. a jailer requiring a prisoner to work must have the legal authority to compel the prisoner to do the particular act.

Constitution in unambiguous terms has provided protection to life, liberty, body, reputation and property of every citizen……. Every citizen has the right to do whatever he likes provided it is not prohibited by law. Where an interview of the petitioner was voluntary, telecasting the same would not violate the guarantees granted to citizens in terms of article 4. Petition for restraining the television corporation from telecasting his voluntary interview being devoid of merits was dismissed. (1988 CLC 545)

The word “law” is not defined by the article. However, it includes: Statute, Customs to the extent they are recognized by statute, International law as adopted by conventions and incorporated in the domestic system and Judge made law as settled by superior judiciary in the exercise of its judicial and quasi judicial powers. (1983 PCr. LJ 2182)

Word “law” used in article 4, 8 and 260(3) is confined to positive law and such Islamic laws as made applicable by positive law. Argument that “law” includes Islamic Law can be rebutted by reading article 4 jointly with articles 227-30 of the Constitution. (PLD 1975 SC 66)

Exercise of discretion

Discretion is to be exercised in just, fair and proper manner. Concept of absolute discretion does not exist in law as it is incompatible with the guaranties provided in Art 4. (2003 PLC (C.S) 1161 (b)

Article 5.

Article 5 of the Constitution of Pakistan can be divided into two parts:

Loyalty to the State : Constitution of Pakistan demands loyalty to the State from every citizen of Pakistan.

Obedience to Constitution and Law: Obedience to the Constitution is demanded from every citizen wherever he may be and every other person while in Pakistan.

The article gives a Constitutional sanction to the punishment of acts of disloyalty to the State which are punishable by ordinary law.

First duty of citizens is loyalty to the State and if a person commits any offence, then he is not entitled to the protection of fundamental rights and is liable to be prosecuted and dealt with in accordance with the law enforced for the purpose. (PLD 2005 Lah 721 a)

It is the duty of each and every citizen to act in accordance with the law. If a citizen which includes a person performing functions in connection with the affairs of the State does not obey the Constitutional command, then he is not performing his obligations imposed by the Constitution. High Court can oblige him to perform his duty under the Constitution. (1997 CLC 1379)

Article 6.

Abrogation and Subversion, Suspension, Hold in Abeyance and Unconstitutional, meaning of

According to Black’s Law Dictionary, abrogate means to annul, cancel, revoke, repeal or destroy while Subversion means overthrowing or destroying .

The real distinction between the abrogation and subversion is difficult to discover; perhaps there is none, because the overthrowing of the constitution is the same thing as its annulment.

Suspend means to temporarily delay, interrupt or terminate while Hold in abeyance means to adjourn, delay, defer postpone or retard.

Unconstitutional means not in accordance with a political constitution or with procedural rules. Its legal definition is some act contrary to or in conflict with the constitution. 

Clause (1) of Article 6 of the Constitution defines what constitutes offence of high treason, while its Clause (2) describes the liability of a person who aids and abets the offence described in Article 6(1). Thus Article 6 is attracted not only when the Constitution is abrogated or subverted or suspended or held in abeyance, but also when an attempt is made or conspiracy is hatched to abrogate, subvert or suspend it.

The words aiding or abetting appearing in Clause (2) of Article 6 are not defined in the Constitution, therefore the Court can resort to the definition of these terms contained in Pakistan Penal Code (PPC). Section 107 of Pakistan Penal Code (PPC).

Considering the act of high treason as an act of extreme unconstitutional crime, sub-article/clause 2A to article 6 of the Constitution of Islamic Republic of Pakistan, 1973, has been introduced vide 18th amendment Act, 2010, which reads “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.]” This amendment introduced, although, after the crime was committed by the accused, reflects that the offence of high treason is an unpardonable act, not even condonable by the top most Courts of the country and article 6 is the only safeguard within the constitution to deal with an offender who challenges or attempts to challenge the boundary of social contract between citizens and the State. Special Court detail judgment in the High Treason Case against General Musharraf, December, 2019.

The documents clearly demonstrate the guilt in the part of the accused. It proves beyond the a shadow of reasonable doubt all the charges of High Treason leveled against him by the State…. We find the accused guilty as per charge. The convict be therefore hanged by his neck till he dies on each account as per charge. (para 65, page 66)

Concluding the case, the Special Court, held that:

“We, with the majority of 02 as to 01 allow the complaint and hold the accused guilty of the high treason as defined at article 6 of the Constitution and pass punishment under s.2 High Treason (Punishment) Act, 1973, thus Convict be hanged by his neck till he is dead.”

Order of the Special Court in High Treason Case against General Musharraf

However, the judgment of the Special Court was set aside by the Lahore High Court declaring it to be unconstitutional on the ground, inter se, that the process of filing the complaint as well as the formation of the Special Court was not in accordance with the law i.e. these were not approved by the federal cabinet.

Appeals against the judgment of Lahore High Court setting aside the decision of Special Court in the high treason case are pending before the Supreme Court of Pakistan.

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