Why the judgment rolls on by M.A.Niazi

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.


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