A major challenge facing the nation is the prevalence of culture of impunity with regard to a most heinous crime i.e. high treason. Successful commission of this dastardly act saves the perpetrator of the crime from due punishment. This happens on account of the fact that the offender usurps and occupies the highest position in the State apparatus viz president/chief executive. The Establishment (civil/military) then falls in line and are also joined by some amongst the politicians to serve the new Master. They have no qualms to oppose or challenge the unconstitutional act. Thus, the constitution is allowed to be mauled/trampled under the boots and a new constitutional dispensation, euphemistically titled Provisional Constitutional Order (PCO), substituted for it. There occurred successful coups d'etat by successive Bonaparte, resulting in the abrogation or subversion of the constitution. It constitutes the offence of high treason under Article 6 of the constitution. Alas, neither the perpetrator nor his collaborators were ever brought to book. No such proceedings were ever initiated or punishments given. The impunity enjoyed by the offenders is unprecedented and unparalleled in the annals of democratic states. Even though the offence of high treason is created by the country's supreme law i.e. the constitution, the law which regulates it (The High Treason (Punishment) Act 1973) has never been invoked and the prescribed sentence never awarded. This is a most deplorable state of affairs, which has reduced the constitution - most sacrosanct document, establishing binding legal norms - into a worthless document. Consequently, in a public discourse today, the very mention of or emphasis on the word constitution or law invokes sarcastic looks/remarks: why prosecute a taxi driver for over-speeding or a pickpocket for stealing a few bucks, if the molester of the country's fundamental law enjoys impunity, they retort. Impunity enjoyed by military junta and exceptional treatment accorded to some politicians or bureaucrats by withdrawing criminal and corruption cases under the infamous NRO carries an extremely negative image of our nation. It has shattered the principles of equality before law and equal protection of law, guaranteed by the constitution. Having lost half of the country in 1971, the Founding Fathers of the 1973 constitution (some of whom were the biological fathers or fathers-in-law of the present-day politicians) put in this fundamental document, very stringent provisions to check and deter any future military onslaught into the body politic. Article 5 mandated "loyalty to the state" and "obedience to the constitution and the law" as the inviolable obligation of every citizen. Article 6 criminalized any act or attempt or conspiracy to abrogate or subvert the constitution by use of force or show of force or any other unconstitutional means. The offence is called "high treason" and the perpetrator of this offence and any other person who aids or abets or conspires in the process, is punishable. The sentence prescribed is death or life imprisonment. The offence was committed thrice but the successive governments simply ignored it, preferring expediency to valour. The Supreme Court had on three occasions to examine the vires of the military action: first in 1977 (Begum Nusrat Bhutto vs chief of army staff), second in 1999 (Zafar Ali Shah vs Pervez Musharraf) and third on November 3, 2007 (Tikka Iqbal Muhammad Khan vs General Pervez Musharraf). Every time there occurred a coup d'etat, the constitution was practically abrogated or subverted, though euphemistically termed "held in abeyance." The judges were made to take fresh oath on PCO. Those who declined stood removed. The court then examined the military action and always validated the same, relying on the Doctrine of Necessity. It further granted the coup-maker the power to amend the constitution. Having taken fresh oath and thereby accepting the de-facto authority, the court could hardly have any other option but to validate the military action and grant the power of amendment, because in the alternative, the members of the bench had no legal ground to stand on, indeed, no raison d'etre to continue as judges. The instinct of self-preservation or self-interest operated as a deterrent to think of the alternative, which would have exposed the judges liable to the charge of disobedience to the constitution or even aiding or abetting in its abrogation and subversion. Two comments are warranted on the Supreme Court verdicts: one, the track record of the court remains fairly consistent - condoning the action and finding justification for the same on the Doctrine of Necessity. Such pattern of decisions regrettably resulted in stultifying the operation of Article 6 in its application to the perpetrator of the coup d'etat together with his cohorts, aides and abettors in the crime of high treason. A popular perception thus developed amongst the masses that the court, while deciding between the "law" and "fact", leans in favour of the latter and applies law and legal jargon only to recognise the de-facto authority. The only exception from this pattern was the judgement in the case of Asma Jilani vs the government of the Punjab. This judgement was rendered in 1972, in the aftermath of the debacle of Dacca, wherein the then CMLA namely General Yahya Khan, having lost the war and caused the dismemberment of the country, was widely abused and slandered by all and sundry; and the court found it convenient to join the chorus. It declared the martial law as unconstitutional and General Yahya as usurper. And having already been deposed, the court declined to resort to the Doctrine of Necessity or "revolutionary legality" or granting the power of amendment to the CMLA. The court was unwilling to save his actions or recognise his power to make or amend the law i.e. the constitution, as observed: "No valid law can come into being from the foul breath or smeared pen of a person guilty of treason against the national order." The court further warranted action against any future Bonaparte or adventurist, thus: "A person who destroys the national legal order in an illegitimate manner cannot be regarded as a valid source of law-making. May be, that on account of his holding the coercive apparatus of the state, the people and the courts are silenced temporarily, but let it be laid down firmly that the order which the usurper imposes will remain illegal and courts will not recognise its rule and act upon them as de jure. As soon as the first opportunity arises, when the coercive apparatus falls from the hands of the usurper, he should be tried for high treason and suitably punished. This alone will serve as a deterrent to would-be adventurers." Very correct and appropriate observation indeed but when and who to apply to? This is the million dollar question No politician and no parliamentarian have ever contemplated the thought. The constitution, therefore, remains undefended and unprotected, notwithstanding the oath of affirmation by scores of holders of constitutional posts, solemnly swearing (in the name of Allah, the most Beneficent, the most Merciful) that they will preserve, protect and defend this document. The second comment is jurisprudential. Leaving aside the merits of the above-mentioned cases, there are a few basic objections to the very jurisdiction and (assumed) power of the Supreme Court in taking cognisance of the acts of "usurpation" and determining its validity or otherwise. How and under which law, can a court recognise or legitimise an act which is taken in sheer disregard of, nay, patent violation of the constitution? Why Article 6 always gets ignored? How the court could remain alive and functional when the basic law which creates and sustains it, is abrogated and suspended, and the court adjudges such action as valid? How can a creation pronounce upon the fate of its creator? Is the court omnipotent or some super-entity, above the law and constitution? Obviously it is not and the Supreme Court has never made any such claim. The court is just one institution, like others, executive and parliament, created by the constitution. It is, therefore, the product of constitution and derives its jurisdiction and powers from this document. It has, therefore, to remain within the limits of the constitution. Its functions are merely to interpret, not make or change the law. The Supreme Court is indeed bound by its oath to "preserve, protect and defend" the constitution. Indeed, it owes it to the constitution to initiate proceedings against the usurper for the crime of "high treason", as mandated by Article 6 thereof. The court, however, almost always ignored this obligation. During the lengthy proceedings in the above-referred cases, this point was seldom touched and never applied. This is a failure of a sacred constitutional obligation, which every judge is oath-bound to discharge. The author, therefore, shares the views expressed by the Supreme Court in Asma Jilani's case: "...The judges of Municipal Courts who have taken oath of office to preserve, protect and defend the constitution will not break the oath and declare that because of the superior will of the usurper they have been relieved from their legal obligations. If the judges find the executive organ of the state unwilling to enforce their decrees and orders, the only course open to them is to vacate their office. Those who are desirous of serving the usurper may take office under the legal Order imposed by him, but this depends upon the discretion and personal decision of the judges and has no legal effect. If they adopt the second course they will be acknowledging that "might" is "right" and become collaborators with the usurper. The same result is achieved if they foreswear their oath and accept as valid the destruction of the national order and confer recognition on the legislative, administrative and executive acts of the usurper." In this perspective, the executive authority is duty bound to apply Article 6 of the constitution by filing a complaint under the High Treason (Punishment) Act 1973, failing which the superior courts can issue directions for the purpose. The complaint can be against the living and also (symbolic) trial of certain dead perpetrators of the crime of high treason. The law permits retrospective application to crimes committed after March 23, 1956. The posthumous trial and public execution of the remains of Oliver Cromwell in Great Britain furnishes a precedent. Given political will, there cannot be a more opportune time than now. The writer is secretary law and justice commission of Pakistan