Pakistan Army: Legislator, Judge and Executioner

Pakistan Army: Legislator, Judge and Executioner

by U C Jha

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Overview

Almost every state in the world has an army to protect it from external aggression, except in the case of Pakistan, where the relationship between the ‘state’ and the ‘army’ is in the reverse order. The Pakistan Army has the ‘state’. The army has governed the ‘state’ directly during half of its existence and in the remaining half of its history indirectly. The Pakistan Army has also ensured that other independent organs of the state—executive and the judiciary—function under its shadow. The army has another unique feature ; it runs the biggest business conglomerate that owns everything from factories and bakeries to farmland and golf courses. In 2015, the Parliament by a two-third majority handed over another responsibility to the army—trial of civilians in military courts—on the ground that the criminal justice system and the civilian judiciary are incapable of handling the cases pertaining to terrorists. As the trials in summary military courts fall short as compared to national or international fair-trial standards, the risk of serious miscarriage of justice cannot be rules out.

Several armed conflicts are taking place in Pakistan in which the armed forces and its allies on war on terrorism—especially the military of the United States of America (USA)—are involved in fighting several groups of militants and terrorists. The USA as well as the Pakistan military have used lethal drones against the citizens of Pakistan. The military’s involvement on war on terror has led to devastating results in terms of loss of life, destruction of property; besides they have also been responsible for enforced disappearances, a serious crime against humanity. This book analyses the Military Justice System of Pakistan and makes an assessment of its international obligations under the international human rights law and the laws of armed conflict.

Product Details

ISBN-13: 9789383649969
Publisher: Sun Links Ltd
Publication date: 08/15/2016
Series: First
Pages: 208
Product dimensions: 6.00(w) x 9.00(h) x 0.63(d)

About the Author

Wing Commmander (Dr) U C Jha is an independent researcher in the field of military law, international humanitarian law, and human rights laws. He was awarded Ph D in Law and Governance by Jawaharlal Nehru University, New Delhi in 2008. He was a visiting fellow at the Centre for the Study of Law and Governance, JNU, New Delhi in 2008-09. He also holds master's degrees in law, life sciences, business administration, and defence and strategic studies; with post-graduate diplomas in intellectual property laws, environmental laws, and international humanitarian law, refugee law and human rights laws.
Dr Jha has 24 years of commissioned service to his credit. He has also worked as Consultant (Legal) with National Human Rights Commission for more than three years. His work comprises three books, "The Military Justice System in India: An Analysis", "Armed Forces Tribunal", and "Indian Armed Forces: Socio-Legal Perspectives" and over 60 articles and research papers.

Read an Excerpt

CHAPTER 1

Introduction

Pakistan was created in 1947 in the name of the Muslims of British India. It had two wings: West Pakistan and East Pakistan separated by nearly 1000 miles. In 1971 East Pakistan became the independent state of Bangladesh. The official religion of Pakistan is Islam, and about 97 percent of the population is Muslim. Other religions include Ahmadiyah, Christianity and Hinduism. Pakistan is a federation of four provinces: Punjab, Sind, Balochistan and the North West Frontier Province. Governors appointed by the President head the provinces. Each province has its own distinctive ethnic, linguistic and cultural identity. In addition, the seven Federally Administered Tribal Areas (FATA) and the Islamabad Capital City are under the jurisdiction of the Federal Government. The official languages are Urdu and English. Fifty seven percent of the population lives in Punjab which is the most developed province and from which the Pakistan armed forces have traditionally been recruited. Pakistan shares its border with Iran, Afghanistan and India and in south it's border extends to the Arabian Sea. Pakistan's geo-strategic importance has attracted international attention.

Pakistan Armed Forces

Post-partition, the British Indian Army was divided between the successor states-India and Pakistan. While Pakistan is the 36th largest country in the world in terms of total land area, its armed forces have been ranked as the 11th strongest military in the world. It has nearly 1.3 million men and women in uniform. The Pakistani Army forms the bulk of Pakistan's Armed Forces, and its Chief is the key player in Pakistan's external and internal security matters and the country's power politics. In the last seven decades, Pakistan has fought four major wars and lost significant part of its territory to a secessionist movement. It has served as a frontline state for a superpower proxy confrontation, and suffered major militant insurgencies and terrorist campaigns. Since 1960, Pakistan has been a significant contributor to the UN peacekeeping operations. It has contributed more than 160,000 troops to-date in 41 missions spread over 23 countries in almost all continents. At present more than 7,600 military and police personnel of all ranks are deployed in six UN missions.

Pakistan's Military Intelligence Agency, the Inter-Service Intelligence (ISI), established in 1948, is headed by a Lieutenant General appointed by the Army Chief. About 80 percent of the ISI is drawn from the Pakistan's three military services, mostly from the army. The ISI is a powerful political force in the country and is responsible for foreign intelligence. During the Afghanistan insurgency, the ISI grew enormously and its functional domain today include domestic matters as well as extremists groups. The other intelligence services in Pakistan are civilian Intelligence Bureau (IB) and Military Intelligence (MI).

Since the start of the conflict in Afghanistan in 2001, the military of Pakistan have been countering Taliban and Al-Qaeda militants across the seven tribal agencies along the Afghanistan border (FATA). Nearly 150,000 troops remain deployed in the FATA region, alongside 30,000 troops of paramilitary Frontier Corps. The Army Aviation Corps as well as the Air Force aircraft have been used in the internal armed conflict. The resistance put up by Tehrik-e-Taliban Pakistan and associated groups presents the biggest challenge to the Pakistan military. In order to assist the Pakistan military in counter-insurgency and internal security operations, the USA has made several financial allocations. In addition, the USA has continued to use armed drones to attack suspected militants in FATA.

The Pakistan's military has overshadowed state's civil institutions and evolved into an institution of disproportionate strength and importance. The military's dominant presence in Pakistani society is often matched by an equally underdeveloped civilian government. The military regime in Pakistan has ruled the country for nearly half the period of its existence and has either abrogated or suspended the Constitution on several occasions.

Constitution Abrogation Under Military Regimes

During the last 70 years, Pakistan has followed one provisional constitution, three permanent Constitutions and one interim Constitution. The Constituent Assembly took seven years to frame the first Constitution of Pakistan. Delay in framing of the Constitution was mainly because of the lack of consensus on the role of religion in the new state. The Constitution came into being on March 23, 1956 and Pakistan became an Islamic Republic. Between 1953 and 1958 seven Prime Ministers were nominated and removed. The political system was made more fragile by the formation of an officially sponsored Republic Party. In October 1958, the Constitution was abrogated when the President dismissed the central and provincial governments and declared Martial Law. This set precedence for the military to assert itself in the country's political affairs.

On imposition of Martial Law, state power came into the hands of President Iskander Mirza, and General Ayub who had been appointed as Chief Martial Law Administrator (CMLA). The disputes on sharing power between the two military personnel emerged soon, resulting in Ayub assuming complete control on state affairs. Ayub Khan, as CMLA, then staged another coup also in October 1958, forced Mirza out of power, and assumed the presidency. Mirza was arrested and sent to exile to Great Britain where he later died. The Supreme Court upheld the Martial Law and the Laws (Continuance in Force) Order. On February 17, 1960, Ayub appointed a Constitution Commission to examine the causes of failure of parliamentary government. On May 6, 1961, the Commission's Report encompassing various issues of constitutional importance was submitted. Ayub's 42-months long Martial Law Regime ended on the Promulgation of the Constitution in 1962. The main emphasis of the 1962 Constitution was on a strong executive, expressed through the office of the President.

Under Article 225 of the 1962 Constitution, the Presidential Proclamation of 1958 imposing martial law was revoked. The proceedings pending before any special military court stood transferred to the criminal courts which had the jurisdiction to try the offence under ordinary law. The pending petitions for review of sentences awarded by military courts were to be disposed of by the military commanders, depending upon the length and gravity of the sentences. These authorities could also entertain petitions for annulment and commutation of sentences already awarded by the military courts. All sentences passed during martial law by a martial law authority were deemed to have been passed lawfully were to be carried out into execution. Complete protection was given to all actions done and proceedings taken during the period by any martial law authority and none of these actions or proceedings could be called into question. An indemnity was also provided to all actions and proceedings in connection with the administration of martial law.

There was serious criticism about the curtailment of the powers of court in protecting Fundamental Rights of citizens. Ayub responded by introducing a Bill on Fundamental Rights in the National Assembly in March 1963 which made these rights justiciable. Article 88 of the Constitution gave power to the judiciary to act as guardian over actions of executive in Pakistan. The new amendment made the judicial review over legislative act permissible. Thus no legislature in Pakistan could pass a bill which was inconsistent with the Fundamental Rights as laid down in the Constitution and the judiciary was empowered to scrutinise and pass judgment upon the validity of any enactment either of the executive or the legislature. During the Ayub regime from 1958 to 1969, retired military officers occupied the top posts of public and private institutions. The Constitution institutionalised the institution of military into politics for 24 years by prescribing that the President or the Defence Minister must be person who had held a rank not lower than that of Lieutenant General in the army or equivalent in the air force or navy.

The defeat in the 1965 War and ensuing Tashkent Declaration were not acceptable to Pakistan's public. It led to demonstrations throughout Pakistan. The Ayub's regime was charged with corruption, nepotism, graft, and administrative incompetence and the protesters demanded Ayub's resignation. Ayub, neglected by the military, bureaucrats and police resigned on March 25, 1969.

The Pakistan Army's Commander-in-Chief Agha Mohammad Yahya Khan took up the reins and immediately re-imposed Martial Law throughout the country. The Constitution was abrogated again, the National and Provincial Legislatures dissolved, and all political parties were banned. Yahya assumed the office of Chief martial law Administrator (CMLA) and appointed Deputy Army Chief, Air Force Chief, and Naval Chief as Deputy CMLAs. Twenty-five martial law regulations were issued on the same day listing offences, punishments and trial procedures. It allowed the continuance in force all courts and tribunals, all offices and authorities under the Constitution subject to the discretion of the CMLA.

On April 4, 1969, a Provisional Constitution Order was promulgated by the CLMA wherein it was provided that, notwithstanding the abrogation of the Constitution, the state of Pakistan would be governed as nearly as may be possible under the last Constitution. The CLMA was to be the President of Pakistan and would perform all functions assigned to the President under the last Constitution. No judgment, decree, writ order, or process could be made or issued by any court or tribunal against the CMLA or Deputy CMLA or any authority exercising powers or jurisdiction under them. No court or tribunal could question the proclamation, or any martial law regulation or order, or any sentence or order of special or summary military courts. Appeals to the Supreme Court could only lie against any judgment, final order or sentence of a high court that awarded the death sentence or transportation for life, reviewing an order of acquittal or cases involving substantial questions of law. Yahya Khan believed that the military was the only legal and effective instrument to take over the country.

After the defeat and surrender in the 1971 India-Pakistan War, the army was discredited. Yahya was advised by his military colleagues to hand over the power to Zulfikar Ali Bhutto, whose party, the PPP, had emerged as the majority party in the erstwhile West Pakistan. In December 1971, Bhutto though a civilian, was handed over the power as President and Chief Martial law Administrator. Bhutto appointed a commission of enquiry headed by the then Chief Justice of Pakistan to look into the circumstances that led to the military debacle in East Pakistan and surrender in West Pakistan. The Service Chiefs were replaced and their designation was changed from Commander in-Chief to Chief. The President became the sole Commander-in-Chief of the Armed Forces.

The third Constitution of Pakistan came into being in 1973. For the first time the functions of the military were defined in the constitution, which stated that the military was required to "defend the country against-external aggression or threat of war and, subject to law, act in aid of civil power when called upon to do so". The new Constitution stated that anyone who abrogated or attempted or conspire to abrogate or subvert the Constitution shall be guilty of high treason.

In July 1977, General Zia ul-Haq, Chief of the Army Staff, became Chief Martial Law Administrator and suspended the Constitution. Bhutto, his chief opponent, was tried and sentenced to death in 1978 on the charge of conspiring to murder a political opponent. The Supreme Court upheld the sentence, and Bhutto was hanged in April 1979. Zia issued a Provisional Constitution Order (PCO) that not only gave the military regime the right to rule but also the right to amend the Constitution at will. Zia governed Pakistan with three titles: the Chief of the Army Staff (COAS), CMLA, and President. Under Zia military personnel were appointed not only as officers in key Ministries like Defence, Information, Interior, Communications, Housing and Labour; a number of them were also appointed as Joint Secretaries. He formed a Military Council of Chairman of the Joint Chiefs of Staff Committee and the three service chiefs of staff. The country was divided into five military zones under the command of five serving men. In 1981, seven Ministers were retired army officers. Even when the civilian bureaucracy was co-opted into the Federal Cabinet that year, it was as a junior partner. However, the public had shown disdain for the military rule.

Zia died in an air crash in August 1988 and left Pakistan without a President, Prime Minister, or National or Provincial Assemblies. Ghulam Ishaq Khan, the chairman of the Senate, which had not been dissolved by Zia, and next in the constitutional line of succession, took over as interim President in December. Elections were held, Mrs Benazir Bhutto became Prime Minister, and Ishaq Khan was subsequently elected as President of Pakistan. After the ouster of Benazir's Government, elections were held in October 1990 and Nawaz Sharif was elected as Prime Minister on November 1, 1990. Nawaz's Government remained in power till April 1993, when President Ghulam Ishaq Khan dissolved the National Assembly, once again exercising his power through the Eighth Amendment. On May 26, 1993, the Supreme Court of Pakistan declared the Presidential Order of the Assemblies' dissolution as unconstitutional and ruled for restoring the Nawaz Government and the National Assembly. However, because of the serious difference between the President and the Prime Minister, both resigned from their offices on July 18, 1993. Moin Qureshi, a top World Bank Official, was appointed as the caretaker President.

Benazir Bhutto returned to power for the second time in 1993. However, she was dismissed on charges of corruption and mismanagement on November 5, 1996 under the Article 58(2)b of the Eighth Amendment. After the elections of 1997, Nawaz Sharif was re-elected as Prime Minister. In 1998, during the Nawaz's government, the law and order situation gradually deteriorated and sectarian killings took place all over the country. In order to crack down on MQM, Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance, 1998 was promulgated on November 20, 1998. The Ordinance allowed establishment of military courts for trial of civilian charged with offences mentioned in the schedule to the ordinance. The MQM challenged the Ordinance under article 184 (3) of the Constitution as a violation of the Constitution. The Supreme Court held that the said Ordinance was unconstitutional and that the cases in which sentence has already been awarded but not yet executed would stand set aside and the cases should stand transferred to the Anti Terrorist Courts. However, the sentence passed and punishment already awarded and executed would be treated as closed.

While General Musharraf, the COAS, was in Sri Lanka on an official visit, Nawaz Sharif tried to promote Lt. Gen. Ziauddin to the rank of General and appoint him as COAS. On October 12, 1999, Pakistan's armed forces staged a military coup against the government of Sharif. With this Pakistan entered its 25th year of military rule. The next day, General Pervez Musharraf announced that the armed forces have taken control of the affairs of the government to prevent any further destabilisation of the country. Musharraf proclaimed emergency throughout Pakistan and assume the charge of the Chief Executive. However, he did not abrogate the constitution; it was held in abeyance. The National Assembly, the senate, and the four Provincial Assemblies were suspended. A Provisional Constitutional Order (PCO) was promulgated which provided that notwithstanding the abeyance of the Constitution, Pakistan would be governed as nearly as may be, in accordance with the Constitution. All courts in existence would continue to function and to exercise their respective powers and jurisdiction provided that the Supreme Court and the High Courts or any other court would not have the power to make any order against the Chief Executive or any person exercising power or jurisdiction under his authority. The President was to act on the advice of the Chief Executive. Musharraf did not impose Martial Law and declared that the armed forces had no intention to stay in charge any longer than is absolutely necessary to pave the way for true democracy to flourish in Pakistan.

On November 03, 2007, Musharraf proclaimed emergency in his capacity as Chief of the Army Staff. In his proclamation, he gave suicide bombings, terrorist attacks on law enforcement agencies and fight against terrorism as some of the reasons for imposing the same. Other reasons included interference by judiciary in government policies, release of hardcore criminals, judges overstepping the limits of judicial authority and taking over executive and legislative functions. He also ordered that the Constitution would remain in abeyance. On November 28, 2007, Musharraf handed over command of the army to General Ashfaq Parvez Kayani and the next day he took oath as civilian President. In 2007, the 1973 Constitution was revived, albeit with various amendments made during the Musharraf's regime. In order to avoid the impeachment process, Musharraf announced his resignation from the office of President on August 18, 2008; thus ending his nine-year of military-cum-civilian rule. The constitutional amendments made during Musharraf regime were reversed in April 2010 by the government that transferred key powers from the President to the Provinces and extended Fundamental Rights to include the right to education and information.

(Continues…)


Excerpted from "Pakistan Army"
by .
Copyright © 2016 U C Jha.
Excerpted by permission of KW Publishers Pvt Ltd.
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Table of Contents

Preface

1. Introduction

2. Military Legal System

3. Anti-Terrorism Laws

4. The Right to a Fair Trial

5. The Twenty First Constitutional Amendment

6. Enforced Disappearance

7 . International Humanitarian Law

8. The Future

Bibliography

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