The Supreme Court found that the decision it gave in Asghar Khan’s
case provoked deep emotion not just among those affected, but also among
the military as a whole. Matters reached the extent that the current
COAS said that the constitution was supreme, while the former COAS, who
had been named by the Supreme Court as liable to investigation, said
that there should be an end of what he called the ‘media trial’ and that
he should be tried under the military rules for the offence of
subverting the constitution.
It has been reported that the GHQ is
examining the Army Act to find the section under which the offence
might be tried, not to determine how to try an officer on the Retired
List, which is what General Beg and the other officer to be
investigated, the then DG ISI, Lt Gen (retd) Asad Durrani, are.
The
desire for a trial under the Act, rather than the ordinary law of the
land, illustrates one of the reasons for the case occurring at all. The
national interest, which the military takes a professional interest in,
is generally quoted as justifying takeovers.
However, the Chief
Justice, by enunciating this view, challenged this assumption that any
specialist group was so better qualified to judge that it gained the
right to overthrow any government that went against national security.
In the Pakistani context, national security has extended to economic
management, and in the case of the last coup, the temerity of the
government in daring to dismiss the COAS.
The reluctance to face
civilian courts goes back to the Raj, when even before the mutiny,
soldiers were granted immunity from appearing in civil courts. The
military is meant to be kept away from the rest of the society; so not
only did it have separate cantonments to live in, but it also developed
separate schooling systems, separate medical and engineering educations,
separate clubs, and virtually separate societies.
Also, separate
courts, with the Army Act providing that civilian offences could be
taken up by a court martial and taken away from the civilian court.
The
implication is that civilian institutions are corrupt, while the
military one, being in this case composed of army officers, is not. This
pays no attention to the fact that corruption has survived numerous
bouts of military rule. The current attempt at reform is being made at
the initiative of a Chief Justice, who returned to office after an
attempt by a coup maker to remove him.
The Asghar Khan case
yielded the result that the Nuremberg Defence will not be accepted. The
Nuremberg Defence was because the defendants at the post-World War II
trials, accused of war crimes, including (but not only) the massacre of
the Jews, defended themselves by claiming that they were military men
obeying orders. The Nuremberg Tribunal rejected this, and said that
orders must be legal.
By repeating this finding in Asghar Khan’s case, the Supreme Court has shut the door on future coups.
It
must be remembered that the COAS does not carry out a coup personally,
he only gives orders. It is actually quite a junior officer, who goes to
the Prime Minister’s House, and even that officer is at the head of
troops with guns. It is the threat that these troops will shoot at this
officer’s orders, that gives the COAS his strength. It is this obedience
that gives the COAS his importance. The COAS has political importance
because of his ability to carry out a coup. As General Beg found out,
this gave the COAS immense power, even if he did not.
However,
what if people along the chain, reaching all the way down to the soldier
with a gun, were to ask: “Is this order legal?” This would take away
from the COAS the ability to make a coup, because no superior would be
able to answer to the satisfaction of the subordinate. Presently,
obedience is given because the superior also implicitly offers
protection, but what if the protection is not there to offer?
It
is interesting that the Supreme Court has intervened in an event, which
did not involve a coup. As the case showed, carrying out a coup was not
the only option. Intervening in the elections was another. The Supreme
Court clearly felt that enough of a prima facie case had been made out
against Generals Beg and Durrani for an investigation by the FIA, but no
juniors were even named. However, an investigation may well bring them
to the fore. If that happens, there may well be an end to the culture of
obedience that allows the military to carry out coups.
That
culture is not meant to allow coups, but because subordinates are in a
kill-or-be-killed environment, and depend on their superiors to bring
them out alive. Orders are not suggestions or the opening of a dialogue:
they are meant to be obeyed. Sometimes orders that seem funny may lead
to the saving of the lives of those who obey them. Or they may lead to a
coup. The Supreme Court wants the question asked.
Perhaps related
is the military’s need for things to be legal. It must never be
forgotten that professional soldiers spend their entire working lives
preparing to do something which the society treats as taboo: kill
people. Coupled with this is the fact that military men are government
servants, and government servants are trained to both obey and implement
the law.
There are certain immutable factors that are true for
any military and the state it appertains to. One is that the state
monopolises force, and possesses force to use against enemies, both
internal and external. The members of this force must overcome very
powerful taboos against something highly illegal, but which only they
can undertake- that is to kill and maim. They can only do this, if they
are assured that what they are doing is legal.
Therefore,
takeovers have to be expressed in terms of defending the country against
enemies, and in terms of legality. One of the first things done by coup
makers is to issue a proclamation of martial law, followed by a Laws
(Continuance in Force) Order. In the last episode, this was an interim
constitution. The enemy is the politician, which is why they are so beat
up upon.
Politicians provide an easy target, not because vicious
people go into it, but because the political system makes people that
way. The military, a more traditional vehicle of social progress, will
continue to need the means of achieving political power. The military
still holds itself as the successor of the Raj, and thus the resentment
of politicians is not just that of all militaries for their political
masters, but also that of the older institution for the newer.
After
the Supreme Court judgement, two questions arise. The first one is more
immediate: if the military does not exercise influence in the coming
elections, who will? Someone must, because nature abhors a vacuum. The
reaction of the Chief Election Commissioner to the judgment, that it
might create difficulties in the election, may owe something to this.
Can an election be allowed without agency interference?
Second,
will the military decide not to opt for legal cover, if it feels it
necessary to take over again? It will have to do so, unless it is
confident again that it will get it from the Supreme Court, which at the
moment will not do so.
The writer is a veteran journalist and founding member as well as executive editor of TheNation.