The Supreme Court judgment in Asghar Khan’s case has
raised important questions about a junior army officer obeying or
disobeying an unlawful command of his superior officer. A debate over
the issue has been going on in both the print and electronic media.
Against
this backdrop, a few examples have been quoted by Air Marshal (retd)
Asghar Khan, in which he showed the courage to defy what he considered
an unlawful command, even in the very early stage of his service in the
Royal Indian Air Force in 1942.
Next, Brigadier (retd) Hamid
Saeed Akhtar, who is a key witness in the case, in a written statement
to the Supreme Court, maintained: “In 1991, I learned through news media
that Mr Yunus Habib had been arrested for fraud in Habib Bank Ltd. At
that occasion, DG MI General Asad Durrani rang me up to explore the
possibility of having him bailed out. He said that COAS (General Mirza
Aslam Beg) had desired to have him bailed out because he had been
helpful in doing a work of national importance. I showed my inability to
do so because this case was sub judice. In September 1991, I was posted
out from MI Karachi to Kharian. Finally, I retired from service in
December 1994.” Thus, Brigadier (retd) Akhtar had to pay a big price for
defying what he thought was an unlawful command.
Also, during
the anti-Ayub movement two Brigadiers serving in Lahore had refused to
fire at the crowds, who were chanting slogans against the Field Marshal,
after which they were removed from service.
Certainly, not all
officers have the courage to disobey an unlawful command. Most of the
subordinates go along with the orders of the superiors, whether they are
lawful or unlawful. For most of them, it is not easy to draw the line
between a lawful and an unlawful order. The nature of training and
discipline indoctrinated into a soldier over the years makes him not to
reason why, but to do and die.
The definition of “lawful command”
as interpreted by the Pakistan Army Act Section 33 Note b(3) is: “A
superior can give a command for the purpose of maintaining good order or
suppressing a disturbance or for a execution of a military duty or
regulation.” And Section 33 Note b(11) states: “A civilian cannot give a
lawful command under this sub section to a soldier employed under him,
but it may well be the soldiers duty as such to do the act indicated.”
As
far as an “unlawful command” is concerned, a person subject to military
law is only required to lawful commands and it is, in fact, his duty to
disobey an unlawful order or command. Hence, the onus for deciding what
is lawful and what is unlawful command rests on the individual.
History
is replete with examples where soldiers have been punished for carrying
out an unlawful command, such as the Nuremberg Trials held after World
War. It is also important to mention that in pre-World War II, it was
part of the German forces’ training that any order considered contrary
to the larger interest of the country or its armed forces must not be
obeyed. Despite this, many senior Generals were eliminated or dismissed
from service by Hitler for disobeying his unlawful commands.
More
so, the debate about whether General Niazi, who was commanding the East
Pakistan theatre of war, should have disobeyed the GHQ orders to
surrender his forces before the Indian invaders still continue. General
Niazi claimed that General Yahya Khan, the then President of Pakistan,
ordered him to surrender; however Yahya stated that he had left the
choice to the commander. Thus, there are times when it is not easy to
decide what serves the national interest.
The writer is President of the Pakistan National Forum. Email: ikramullahkhan1@yahoo.com