Aid to Civil Power
The Armed Forces have increasingly been drawn into an “Aid to Civil Power” situation due to the deteriorating law and order circumstances, more recently Operation Clean-up and the Malakand insurgency. The crucial question being asked today is whether the Constitutional parameters about the use of the military being followed to the letter of the law or are the uniformed Defence personnel becoming an extension of any successive incumbent governments for their own political ends, as is now the case with the bureaucracy and the civil law enforcement agencies? Chapter 9 of the Manual of Pakistan Military Law (MPML) is very explicit in dealing with “Duties in Aid to Civil Power”. In its clauses it deals with (1) Unlawful assembly, riot and rebellion (2) Relations of civil and military authorities (3) Powers and duties of civil authorities (4) Magistrate not available (5) Firing on assembly (6) Protection from prosecution and (7) Martial Law. All this is further amplified in training booklets issued by GHQ from time to time.
Disturbance of the peace by persons composing an assembly makes that assembly unlawful, an act of violence turns it into a riot and if the intention of the riot is to wage war against the State, then it becomes an insurrection or rebellion. If the force is insufficient for dispersing unlawful assemblies and suppressing rioting and disturbances, civil authorities have the right to call for military assistance, which must be accorded. Since any military officer called out to act in case of sudden tumult will seldom have any knowledge about the intention of the mob, he is directed to take instructions from a magistrate. If in case for any reason the magistrate is absent, the military officer must act only when the public security is manifestly endangered. Even in the presence of the magistrate, he must be careful in using “as little force as possible” (direct quote from MPML). In the absence of the magistrate, he must be particularly careful in using no more force than is absolutely necessary. Arrest and detention is subject to the orders of the magistrate and in his absence, depending upon the officer’s evaluation of whether the public interest can be served by such arrest and detention. Under no circumstances can the rioters be punished by anyone other than a magistrate. To quote from MPML Chapter 9, para 3 (page 171), “It has been repeatedly stressed that the primary factor of policy whenever circumstances unfortunately necessitate the suppression of civil disorder by military force within Pakistan is the use of the minimum amount of force necessary to serve the object in view”, unquote. Under section 131 of the Code of Criminal Procedure, the power to take action can only be exercised by a commissioned officer (this includes a junior commissioned officer) whether in the presence of the magistrate or in his absence if the public security is endangered.
Once it becomes necessary to open fire on an unlawful assembly, the officer has to ensure that the firing is specific and effective. It is even laid down that the troops will be divided into sections of 10 and in that the officer will order a few specified men among the section to open fire and that too on ringleaders, if identified. This restriction is governed by the policy of limiting force, firing must be strictly controlled to obviate greater bloodshed i.e. every bullet must count. So that crowds are clear that bluff is not being used, firing of blanks is forbidden as it may encourage the crowd to test the bluff and thus cause greater bloodshed. The law provides full protection from prosecution by section 132 of the Code of Criminal Procedure, provided that no prosecution shall be instituted in any criminal court against any officer or soldier, sailor or airman in the Armed Forces except with the sanction of the Federal Government.
Chapter 9 of the MPML thus provides clear and unambiguous instructions and responsibility thereof, it provides the logic sequence in the application of force in any situation where perforce force has to be applied. It also puts immediate emphasis on the conscience of the officer in using his judgement. Good units also give every young officer some unwritten confidential and pragmatic practices as to how to handle himself during “Internal Security” duties, a sort of a handbook to avoid a bloodbath as well as keeping his nose clean. By law, the officer must use his own discretion in such manner as he deems fit in obeying a requisition for his services from a magistrate, “in so doing he shall use as little force, and do as little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons”, unquote (Code of Criminal Procedure, Section 130(2) ). In short, he cannot go berserk and use the full extent of the enormous firepower he wields. If he does that, he does so at the detriment of the State as every drop of blood thus spilled cuts into the foundations of the State.
All this is very well when dealing with mobs that do not use weapons, what happens when the unit/sub-unit comes under armed fire from snipers or from armed men ready to even fight pitched battles (as in Karachi) which certainly goes beyond the pale of Chapter 9 of MPML and enters the realm of a state insurrection? Do we then turn automatically to Chapter 9 clause 7 of the MPML (where it says, quote “where the disturbances are recurrent, widespread, concerted and directed against constitutional authorities it becomes the duty of the executive, in exercising the common law right of repelling force by force, to assume such exceptional powers and to take such exceptional measures as may be necessary for the purpose of restoring order. The state of things thus set up is generally known as “Martial Law” unquote.
One cannot have doubt that those on Internal Security (IS) Duties will be given great provocation but in return it is incumbent upon them that similarly they must not give cause for provocation to the citizens of a particular area. There may well also be occasions when inexperienced personnel treat citizens with undue harshness. There will be occasions when troops come under fire and their gut reaction may well be to respond with all the concentrated firepower at their command, as they would do in battle. In built-up urban areas this is a sure recipe for human tragedy and the officers on IS duties will be hard put to maintain discipline among their troops, what to talk about fire discipline. Automatic and senseless response must be restrained by conscience, it will be far more courageous to use as “little force as necessary” in circumstances where even the concept of what constitutes a “lawful command” comes into contention. Great care must be exercised in sifting fact from fiction so that misinformation and disinformation does not lead to disaster. No one ever enjoyed any victory by declaring war on one’s own people.
The moral dilemma for the officers on IS duties will be what constitutes a lawful command, both generally and in specific circumstances? Will the Constitutional mores be satisfied in putting down by force (in the name of the Constitution and democracy) a genuine movement for freedom, democracy and the rule of law? And the consequences thereof, of either action or inaction? It is an awesome Catch-22 responsibility, a crossroads between career and conscience. There is a balance that can be maintained and that is by being scrupulously fair and sticking to principles, by neither obeying orders blindly on the one hand while on the other nor allowing militants to make the streets hostage to their demands. How many of us are capable of rising above the confines of one’s career and choosing the right road in such circumstances based on conscience and the rule of law?
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