Of law and command

Discipline has never been one of the strengths of the people of this part of the world. From fateful events such as the Battle of Plassey to mundane aspects of life like chaotic traffic on the roads, discipline is only too conspicuous by its absence. Iqbal Jafar (The News)

Indiscipline is so thoroughly ingrained in our culture that nothing short of rigorous training and fear of severe punishment, as in the armed forces, can enforce even the basic norms of discipline. Under the Army Act, for example, a person who fails to turn up at the place of duty at the fixed time can be punished with imprisonment that may extend to three years. No wonder the armed forces remain a model of discipline even in this land of habitual defiers of discipline. Consider this, by way of contrast: no less than three formidable and feared chief executives of Pakistan – Ayub, Bhutto and Zia – tried to enforce nothing more drastic than punctuality, and that too in the Federal Secretariat, to begin with. Punctuality did not last for more than a few weeks, and the secretariat relapsed into its leisurely ways, no questions asked. This pervasive malaise of indiscipline, in its numerous manifestations, can be fatal for a state that is fast becoming ungovernable. We should therefore show our concern, and do something about it if we can somehow get sufficiently motivated to tackle our collective weaknesses. Instead, however, we seem to be moving in the opposite direction. Suddenly, amid growing lawlessness, insurgency, and administrative inefficiency, we are set to invoke an undefined and untested principle of disobedience of unlawful command in the civil and military administrations. All civil and military personnel are expected to decide for themselves whether orders given to them are lawful or unlawful. The present debate on “lawful command,” in the context of military discipline, was initiated in 1996 by Air Marshal (r) Asghar Khan through his petition to the Supreme Court, where he cited his own act of disobedience in 1942 as a young pilot officer, and to the Nuremberg trials of 1945-1946, to prove that “a person subject to military law is only required to obey lawful commands and it is in fact his duty to disobey an unlawful order or an unlawful command.” While the circumstances of his own act of disobedience, as narrated by him, are rather vague and incomplete, the issues involved in the Nuremberg trial of German officers who took part in the Second World War were about “war crimes” and “crimes against humanity” in the course of a war that cost more than 40 million lives in Europe alone. However, despite the colossal scale of the crimes committed, the legitimacy of the Nuremberg trials has been questioned. Even Robert Jackson, the chief prosecutor from the American side, admitted in his letter to President Harry Truman that the Allies themselves “have done or are doing some of the very things we are prosecuting the Germans for.” Harlan Fiske Stone, chief justice of the US Supreme Court at that time, called the trials “a little too sanctimonious a fraud.” Neither of the two examples given by Air Marshal Asghar Khan are, therefore, relevant or credible. However, the air marshal is under no obligation to give only relevant examples. His basic contention, though denuded of examples, can be accepted if it is found to be otherwise legally tenable. And the court has come to the conclusion that the persons named in the petition were guilty of illegal acts. It has been held by the court that Ghulam Ishaq Khan, who was then president, and Gen Aslam Beg and Gen Asad Durrani, “acted in violation of the constitution by facilitating a group of politicians and political parties, etc, to ensure their success against the rival candidates in the general elections of 1990, for which they secured funds from Mr Yunus Habib.” The court also held (Paragraph 90) that “the president could not have issued any command to the army chief or DG ISI as the president did not have any operational authority with respect to the armed forces even after the Eighth Constitutional Amendment.” This finding of the court is unexceptionable also for the reason that a command given by a superior officer to a subordinate has to be a formal order of which there should be a record, except for the orders given in the heat of battle and on the battlefield. But an action taken after a verbal discussion between a few civilians and generals, and that too about matters outside the purview of their official duties and functions, would be an unofficial and personal enterprise. And that is how the court has looked at it. These findings of the court were sufficient to conclude the case, but the court went ahead to also observe that “only lawful commands are required to be obeyed,” and that all officers “who obey unlawful commands are individually liable.” These observations, if I may submit, are not germane to the decision as the court had already come to the conclusion in the earlier part of Paragraph 90 that the president could not have issued any command for he did not have any operational authority with respect to the armed forces. There being no command, the question of lawful or unlawful commands should not have arisen. But now that the apex court has made these observations, serious thought has to be given to their content and consequences, especially in the context of military discipline. We could begin with the earlier court cases referred to in the judgement where questions of compliance to illegal orders had come up for the consideration of the Supreme Court. In the first place, all seven cases cited by the court deal with matters relating to the civilian administration whose operational needs and procedures are quite different from those of the armed forces. Dissent and disagreement in the civilian administration are quite common and protected by the rules. If, for instance, a secretary in charge of a ministry disagrees with his minister, he can, under the Rules of Business, refer the case to the prime minister for the resolution of the issue. For these reasons, dissent and disagreement in the civilian administration can’t be equated with disobedience. But if a decision has been taken by a competent authority after giving due consideration to the reasons for dissent, the order has to be implemented. In that case disobedience is not an option. The operational needs and procedures of the armed forces are quite different. A person may expect to spend his entire career as a soldier or officer without firing a shot in actual combat, but he has to be fit and ready for combat, and behave, react and think as he should in a situation of armed conflict. His resolve should not be weakened by doubt, nor his loyalty by defiance, for it is only unflinching discipline that distinguishes an army from the rabble. Does that mean that there should not be a check on unlawful orders in the armed forces? Of course not. As the court has laid down in the same paragraph: “All superior officers giving unlawful commands or who fail to prevent unlawful action on the part of their subordinates are liable and culpable.” This ensures that the law is enforced without the bounds of discipline being crossed. This is what court martials are about. I would like to speculate on the advisability of opening the doors to endless litigation over offences of political nature that were committed in the past two or three decades. The Supreme Court may, instead, take an initiative that should have been taken by the two major political parties that had signed the Charter of Democracy in May 2006. The Supreme Court may undertake the responsibility to establish a Truth and Reconciliation Commission, as proposed in Clause 13 (a) of the charter, to bring to light truth and promote reconciliation.This would relieve the court of the digressive, random and inquisitorial peep into our murky past. http://rtilive.pk/detail/7790 Right to Information Pakistan Live, RTI Live, Information Pakistan, RTI online Research ORganization,pakistan,news pakistan, pakistan news,punjab,lahore,Of law and command