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