Musharraf instead of appeal should demand Imran Govt files appeal and then withdraws case. By Hem Raj Jain
19 Dec 2019
In a video message the former Pakistan army chief and ex-president General (retired) Pervez Musharraf, who was given the death penalty by a special court on Tuesday, said that “I have not been heard and I’m being victimized”. In a press release of ISPR also, the Pakistan military said that Musharraf was singled out and even constitution of special court is illegal and case was concluded in HASTE [which seems to be valid argument given the fact that the application by Govt allegedly on December 17, 2019 to include three more accused as per Article 6 (2) of the Constitution was not heard / decided before awarding death sentence to Musharraf]. The retired Pak army generals appearing on TV Channels have said that Musharraf has been given death sentence by applying a constitutional provision of Article 6 retrospectively which is against the constitutional protection under Article 12.
Given also the treatment Supreme Court of Pakistan (SCP) meted out in case of extension of Army Chief General Bajwa (and also the mimicry of Musharraf the CJP Khosa did publicly while referring a likely adverse judgment by special court expected to come soon against Musharraf) the Pak military is allegedly getting an impression that the higher judiciary of Pakistan wants to humiliate and harm the interests of the military of Pakistan. The role of Imran government in both these cases (extension of Gen. Bajwa and death sentence to Gen. Musharraf) is suspicious to say the least (as has been extensively reported and discussed in Pakistani media). This is not good for the peace of the Indian subcontinent and for nascent democracy of Pakistan (which has witnessed military dictatorship for about half of its existence since independence).
Therefore in the interest of protecting the martial interests of Pakistan Musharraf instead of filing an appeal should demand that Imran Govt should file appeal (because it’s said application of December 17, 2019 has not been heard / decided before awarding death sentence to Musharraf) and should withdraw the case against one (Musharraf only) or against selected few (as per said application in special court for including only three as accused), as given below:-
(1)- Two important legal / political points should be kept in mind in this Musharraf case: -
(i)- Secular-democracy is the most powerful ideology of the contemporary world but every polity is not competent to run it properly. The failure of any civilian government (headed by President & PM) on civil matters is of secondary importance but when civilian leadership fails to safeguard the martial interest of the State then the military leadership has every right to take-over the government (till elections are OK to elect new leadership). It happened when Musharraf ordered election in 2008 after carrying out a coup against government of PM Nawaz Sharif in 1999 because Nawaz was angry with Pakistan military (under Musharraf due to Kargil which was legitimate operation as per the narrative of Pak military) and wanted to dislodge Musharraf when he was in the flight which Pakistan Military thought deserved a coup. The military rule remained from 1999 till the elections in Pakistan in 2008 and during this rule (out of military coup) the constitution (which is not worth the paper it is written on during this period) can be used fully or partly (as a convenience) by the military ruler but it has no legal binding on such ruler during this period.
[Here it is pertinent to mention that the narrative of Pakistan about its conflict with India is not valid because what is needed is only plebiscite to solve the chronic & gory Kashmir problem which Pakistan can easily achieve if tries seriously even by mobilizing some Kashmiris as mentioned at https://www.alwihdainfo.com/Kashmiris-should-protest-at-Jantar-Mantar-against-President-about-Article-143-1-for-restoring-their-human-rights_a77642.html . But Pak military cannot be blamed for this faulty narrative when this is the narrative of government of Pakistan which has unnecessarily caused many wars and proxy wars by Pakistan against India in which immense lives, blood and honor have been lost].
(ii)- In the hierarchy of law the martial matters are more important than criminal matters and criminal matters are more important than civil matters. Moreover, civil matters are between citizens and citizens (in the suits against or by State the status of State is of a citizen), the criminal matters are between State and citizens (criminal proceedings are therefore not in the name of complainant v/s accused but the State, on behalf of complainant v/s accused) and martial matters are between State and State. Therefore, only in criminal matters the Courts (including SCP) can ask the government (for protecting the rights of the citizens, the complaints) to file the case or register the FIR even if government is not willing to do it. But in case where aggrieved party is State (and not the complaint citizen) as is the case of treason (mentioned in Article 6 of the Constitution) only government can file such case and the Courts have no jurisdiction to get such case filed as has been illegally done in this Musharraf case. In other words, if government (including Imran government) does not want then this case cannot go-on and Imran government could have withdrawn this case any time.
(2)- In this case Musharraf only has been made the accused [and not the thousands of persons aiding or abetting or collaborating the acts of this so-called high treason though it is mandated by Article 6 (2) of the Constitution] for the simple reason that if these thousands of people (including military generals & other officers, constitutional / statutory authorities etc) are made accused then the case will become an absurdity and cannot proceed. This singling-out of Musharraf is a legally objectional act by not only the judiciary but even by the government (headed by Imran who have been publicly demanding case against Musharraf for high treason before coming to power).
Therefore, in the interests of protecting the martial interests of Pakistan Musharraf (instead of appeal) should demand that Imran government should file appeal and then (during pendency of this appeal) should withdraw case if against one / selected few, as explained above.