General Pervez Musharraf's lawyers argue that Musharraf was not alone in suspending the Pakistan Constitution on November 3, 2007 because he consulted with "the Prime Minister, Governors of all four Provinces, Chairman Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice-Chief of Army Staff and Corps Commanders of the Pakistan Army," all of whom allegedly endorsed suspension of the constitution, a crime known as high treason. Unless all players are charged with the crime of high treason, his lawyers argue, singling out Musharraf is unfair and unjust. Instituting a high treason case against Musharraf, his lawyers argue, is an example of selective justice when some persons are prosecuted while others let go even though they all are equally guilty. Musharraf's lawyers make these arguments knowing that no court will be able to cast a wider prosecution dragnet that includes prominent politicians and generals presently serving in the armed forces. Fearful of backlash and another military coup, these lawyers hope, a pragmatic high court will dismiss the high treason case against Musharraf. This legal commentary demonstrates that Musharraf's lawyers are unlikely to succeed in their mission and that a high treason case only against Musharraf is maintainable. The commentary offers two arguments. First, Musharraf alone is responsible under the doctrine of command responsibility. Second, the selective justice argument is unavailable in the context of high treason.
Musharraf may be prosecuted for high treason under the command responsibility doctrine. In international criminal law, the command responsibility doctrine has been employed to hold civilian leaders and military commanders responsible for crimes committed by their subordinates. This concept can be transferred to domestic jurisprudence to hold the top leader responsible for high treason committed with the connivance of subordinates. Under command responsibility, the top leader cannot lawfully demand that all subordinates who agreed to obey him in the commission of high treason be also prosecuted. The top commander is responsible for high treason even if the generals under his command endorse the decision to suspend the constitution and proclaim unlawful emergency.
By all counts, General Musharraf was the top commander/leader at the time of 2007 suspension of the constitution, holding the two most powerful offices of the nation. He was the Chief of the Army Staff, the most powerful office in the armed forces of Pakistan. All army generals with whom he consulted to suspend the constitution were under his direct command. He had also occupied the office of President as the Head of State with the power to dissolve the national assembly. Musharraf imported a banker from abroad and had him elected as the prime minister. Musharraf appointed the four provincial Governors. Likewise, Musharraf had appointed the chiefs of the armed forces and had the power to fire any military officer refusing to carry out his orders. In fact, Musharraf sacked the Chief Justice of Pakistan when the judge refused to endorse the 2007 suspension of the constitution. By all counts, General Musharraf was the sole man on the top that no politician or military officer could disobey without incurring punishment.
His lawyers might be able to show that Musharraf consulted the prime minister, provincial governors, military generals, and prominent politicians before suspending the constitution. This consultation, however, does not legitimize the crime of high treason. Under the command responsibility doctrine, the commander is responsible for the crimes of his subordinates, even if he himself did not commit any such crimes, simply because he failed to prevent the commission of crimes. In the high treason case, however, Musharraf himself was the prime perpetrator. He is not charged with high treason committed by his subordinates but for high treason he himself committed and for which he solicited the approval of his subordinates. Law cannot allow Musharraf to hide behind subordinates to avoid criminal responsibility for high treason.
Musharraf's argument that he cannot be singled out for the crime of high treason is without legal merit. Even in ordinary violations of law, such as speeding on a highway, a violator cannot successfully argue that a patrol officer must either issue traffic tickets to all who are speeding or to none. This legal logic will increase violations of speed limit because rarely does the highway patrol have the resources to stop every person engaged in speeding. Of course, the selective enforcement of law, including traffic regulations, on the sole basis of race, religion, or any other arbitrary classification will be offensive to the notions of fairness, equal protection, and justice. The selective justice argument, however, loses in almost every other context.
Most important, the argument of selective justice is particularly unavailable in high crimes, including genocide, torture, enforced disappearances, and high treason. Every person who commits high crime is personally liable and cannot invoke the notion of selective justice. Throughout the world, high treason is such a serious crime that states that have otherwise abolished death penalty retain capital punishment for high treason. When the top military general, donning his military uniform, undermines a democratic constitutional order and detains judges of the nation's highest court, he cannot invoke selective justice to avoid punishment for high treason. A military usurper deserves no mercy or forgiveness for non-enforcement of the law of high treason invites future subversions of the democratic constitution.
In safeguarding the democratic constitutional order, it will be prudent and not selective justice, for the Pakistan Supreme Court to stay focused and need not dilute the case. It may decline expanding the high treason case to include secondary players who could not refuse to endorse Musharraf's crime. The Court must prosecute Musharraf under article 6 of the constitution to establish a robust principle that the top general who suspends the constitution is personally liable for full weight of the crime of high treason regardless of whether anyone else is prosecuted.