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Legal Norms of Martial Law Administration with Particular Reference to Pakistan
by J. Minattur,
PH.D. (London), LL.D. (Nimeguen), D.C.L. (Strasbourg), of Lincoln's Inn,

Cite as : (1970) 2 SCC (Jour) 15

For the third time in the history of Pakistan, martial law was proclaimed on March 25, 1969. When it was proclaimed for the first time it was limited in its area of operation and was not of very long duration. The second time it was in operation throughout the State and continued for nearly four years. As no irrevocable divorce was pronounced in 1962 when its operation was brought to an end, martial law sought out Pakistan after a lapse of about half-a-dozen years, and established familiar martial relations again. It is difficult to envisage how long this marriage of minds will continue; it could be until death them do part. For it would seem that it is not given to Pakistan to be separated from martial law for long; and when she is, there appear to be internal conflicts. In the company of martial law she seems to enjoy peace and prosperity.

1. Object of Martial Law.— It has been observed that "the Common Law of England" is the common law of most of the self-governing colonies, and in any case the Roman-Dutch law and the French law of Quebec admit as clearly as the English the doctrine salus republica suprema lex.1 This Latin tag has been employed to cover a multitude of sins in British colonies and possessions. Though martial law has never been formally declared in England since the enactment of the Petition of Right, it has been not infrequently resorted to in the colonies.

The object of martial law and the trial of offenders under it is justly stated, according to Sergeant Spankie, Advocate-General of Bengal, in the Bengal State Offences Regulation of 1804, to be immediate punishment "for the safety of the British possessions, and for the security of the lives and the property of the inhabitants thereof. It is, in fact, the law of social defence, superseding under the pressure, and therefore under the justification, of an extreme necessity, the ordinary forms of justice. The object is self-preservation by the terror and example of speedy justice".2

While the laws are silenced by the noise of arms, the rulers of the armed forces must punish, as equitably as they can, those crimes which threaten their own safety and that of society; but every moment beyond is usurpation. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime.3 Lord Brougham observed:

"On the pressure of a great emergency, such as invasion or rebellion, when there is no time for the slow and cumbrous proceedings of the civil law, a proclamation may justifiably issue for excluding the ordinary tribunals, and directing that offences should be tried by a military court: such a proceeding might be justified by necessity, but it could rest on that alone. Created by necessity, necessity must limit its continuance."4

It appears that British administrators in colonies often visualised such necessity. In a case which arose out of a proclamation of martial law in India on the ground that a mob which had no arms but only sticks and stones attacked a police post and a court-house, Beaumont, C.J. of Bombay High Court, laid down certain propositions which were not infrequently honoured in the breach. He said:

"Firstly, a state of war or armed rebellion or insurrection must exist and not merely a state of riot which could be put down with the aid of the military and other citizens. Secondly, neither the military nor the citizens can refuse or impose conditions on such aid. Thirdly, the necessity must be proved, not merely of recourse to the military, but also of the impossibility of functioning of the ordinary civil laws and the necessity of their abolition for the time being, and the courts have power to go into the question whether such necessity existed. Fourthly, it is only when he existence of war, whether against foreigners or rebels, and necessity are established, that the jurisdiction of the court ceases. Fifthly, the powers exercised by the military commonly but incorrectly known as 'martial law' in fact are no law at all and would be, if the fact of necessity for a war is not established, illegal and therefore need Acts of Indemnity, if they are not to be questioned."5

The Government of India in 1942 in their Departmental Instructions to Military Authorities stated in very clear terms the duties of a military commander in dealing with insurrection or rebellion. The Instructions read in part:

"In case of open rebellion, when the military force available may, unless the Military Commander assumed exceptional powers, prove inadequate to meet the emergency, he should enforce Martial Law. . . supplementing the ordinary law as may be necessary, but no more than is necessary, by military tribunals. In general, he should confine the exercise of his exceptional powers to taking such measures as can, on the restoration of order, be shown to have been necessary for ensuring the safety of his troops and suppressing the rebellion. Any exceptional measure taken must not only be clearly directed to the attainment of these objects, but be reasonably likely to achieve them.

Martial law means the suppression of ordinary law in any part of the country by military authority, whose sole duty is to restore such condition of things as will enable the civil authority to resume charge. In order to attain that object, the military officer may issue such orders, and enforce them in such manner as may be necessary for that purpose only. His authority is, for the time being, supreme, but in practice the amount of his interference with the civil administration and the ordinary courts is measured by military necessity. He should not interfere beyond what is necessary for the restoration of order, and should, whenever possible, act in consultation with the local civil authorities. Offenders should be handed over to the ordinary courts for trial whenever this is possible; but persons charged with offences which are not offences against the civil law cannot be so handed over. The military officer has power to try an offender and punish him under martial law, but he should not exercise this power except where it is necessary for him to do so for the purpose of restoring order or when it is not possible to keep an accused person in arrest until he can be handed over for trial by the ordinary courts. Such occasion may arise if communications are interrupted during a considerable period, but even then the military officer can generally arrange for the attendance of a civil magistrate to whom prisoners can be handed over for trial, and this should be done when possible. If the military officer has to try an offender, though this should only be necessary in very exceptional circumstances, the trial should follow the forms of military law; and a record must be kept of every trial so held, and of every punishment inflicted under martial law. Any punishment so inflicted must not be excessive."6

There may exist such instructions. But what happens when martial law is proclaimed may be gathered from reports of military officers. The following extracts are from reports appended to the Governor's report to the Colonial Office regarding the insurrection in Jamaica in 1865.7

(October 17, 1865): Lieutenant Adcock reported to his commanding officer:

"I visited several estates and villages, I burnt seven houses in all, but did not even see a rebel. On returning to Golden Grove in the evening, sixty-seven prisoners had been sent in . . . . I disposed of as many as possible, but was too tired to continue after dark."

Captain Ford reported on the same day:

"We made a raid with thirty men, flogging nine men and burning their Negro houses. We held a court martial on the prisoners, who amounted to about fifty or sixty. Several were flogged without court martial, from a simple examination."

Captain Ford concluded:

"This is a picture of martial law. The soldiers enjoy it, the inhabitants here dread it. If they run on their approach, they are shot for running away."8

One is reminded of Shakespeare's lines:

"Like flies to wanton boys, are we to the gods; They kill us for their sport."9

In the administration of martial law, the immediate agent of the celestial god happens to be the common soldier10

2. Proclamations of Martial Law.— (a) The Punjab Disturbances of 1953.11:

As Pakistan was created by the division of India into two dominions, it inherited, along with India, the laws in force at the time of the partition. Martial law was part of the existing laws thus inherited. Martial law under the common law rule was administered in 1942 in Sind which later became a province of Pakistan. To the Government of Pakistan this was the latest instance of martial law administration with which they were closely familiar. When they had to resort to martial law in 1953, they therefore followed the latest precedent and administered it under the common law rule without recourse to legislation.

Martial law was proclaimed in Lahore in March 1953 when orthodox Muslims resorted to direct action against Admadiyas, a Muslim sect following the teachings of Mirza Ghulam Ahmad. In a matter of six hours order was restored by the military forces. The military commander constituted himself Chief Martial Law Administrator and conferred on himself authority to issue martial law regulations and orders and to appoint special courts for the trial and punishment of persons contravening such regulations and orders. Ordinary criminal courts were permitted to exercise jurisdiction in respect of offences other than those created by the regulations or connected with the disturbances. On May 9, 1953 the Governor-General promulgated the Martial Law (Indemnity) Ordinance, 1953 (No. 11 of 1953) indemnifying servants of the Crown and other persons in respect of acts done by them in good faith under martial law and validating sentences passed by military courts. The Ordinance defined the martial law period as "the period beginning on the 6th day of March, 1953 and ending on such day as the Central Government may by notification in the Official Gazette declare".

(b) "Peaceful Revolution."

The next time martial law was proclaimed in Pakistan there was no disturbance in the country. On October 7, 1958 the President of Pakistan proclaimed martial law throughout the State and abrogated the Constitution which he considered was "full of dangerous compromises". "To rectify them", he said, "the country must first be taken to sanity by a peaceful revolution".

He appointed the Commander-in-Chief of the army, General Muhammed Ayub Khan as Chief Martial Law Administrator. It was decided that the administrative organisation of the Chief Martial Law Administrator would consist of a civil wing and a military wing. In running the administration in accordance with the military regulations issued from time to time, the civil agencies would be utilized to the maximum extent possible.

The Laws (Continuance in Force) Order, 1958, promulgated by Iskandar Mirza (who still styled himself President after having abrogated the Constitution of which the President formed a part) provided that, notwithstanding the abrogation of the Constitution and subject to any order of the President, or Regulation made by the Chief Martial Law Administrator, Pakistan would be "governed as merely as may be in accordance with the late Constitution". The order declared that all courts in existence immediately before the proclamation of October 7 would continue in being, that the law declared by the Supreme Court would be binding on all courts in Pakistan and that the Supreme Court and the High Court would have power to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. No writs, however, could be issued against the Chief Martial Law Administrator, or his Deputy or any person exercising powers or jurisdiction under the authority of either.

Between October 7th and 17th thirty-nine martial laws regulations and nine martial law orders were issued by the Chief Martial Law Administrator.

Under Regulation 1-A special and summary military courts as well as ordinary criminal courts were given power to try and punish any person for contravention of martial law regulations or orders or for offences under the ordinary law.

Severe penalties for offences were prescribed by the regulations. For instance, "black marketing" was declared punishable by rigorous imprisonment for fourteen years.12 A maximum punishment of fourteen years' imprisonment might visit a person who offered or attempted to offer or accepted a bribe or illegal gratification.13

On October 27, General Ayub Khan, who had been sworn in during the forenoon as the Prime Minister of Pakistan, removed without ceremony the President who had appointed him, assumed plenary powers, and declared himself President.

Martial Law Regulations issued between October 30 and November 8 dealt, in the main, with the control of prices of foodgrains and other commodities, income tax returns, surrender of foreign exchange and similar welfare measures. As early as October 17th, General Ayub Khan declared that martial law would not be lifted until the political, social, economic and administrative mess in the country had been cleared.

He said:

"Let me assure everyone that whereas martial law will not be retained a minute longer than is necessary, it will not be lifted a minute earlier than the purpose for which it has been imposed has been fulfilled. That purpose is the clearance of the political, social, economic and administrative mess that has been created in the past."14

To facilitate this "clearance" further martial law regulations were issued. One of them issued on December 4 provides:

"Teasing or in any way molesting women is punishable. Maximum punishment five years rigorous imprisonment."15

Although martial law continued in operation until June 1962, the direct administration of the army had largely been withdrawn by December 1958.

From the "peaceful revolution" in October 1958 to June 1962, martial law was administered in Pakistan not to repel force by force, but to "attempt to purify social life".16 It was concerned "as much with 'antisocial' activities as with actions that threaten public order".17 For instance, under martial law regulations, bribery and nepotism were punishable with imprisonment for a maximum period of fourteen years and unlawful holding of foodgrains was punishable with death.

A few days after assuming the Presidentship, Field Marshall Ayub Khan expressed his conviction that martial law methods were necessary to bring about social change.

"We want martial law cover for the reform we want to introduce, such as settlement of refugees. . . and land reforms. For the bulk of the population it is a good thing but it is bound to hurt some."18

Referring to the martial law administration, Kayani, C.J., of the West Pakistan High Court, said:

"If martial law means enforcing on the people a sense of citizenship, then you need it. . . . have you not considered that martial law is an essentially Islamic institution? Have you not been taught since childhood to fear God father than love him?"19

One Pakistani observer reviewing the administration pointed out that:

"Martial law has been mostly used for combating antisocial activities like black marketing, corruption, smuggling and tax evasion, which could not be swiftly dealt with under the ordinary law of the land with its proverbial delays and the technical loopholes legal ingenuity could always exploit for defeating its purpose."20

Even when the purpose of the martial law administration, as President Ayub Khan declared, was "to prepare the country suitably for the representative form of Government to come in and flourish"21, it strikes one as not in consonance with what is generally regarded as the purpose of a regime or martial law. It is doubtful whether there was any ground for a proclamation of martial law in October 1958; and it is still more doubtful whether there was any necessity for its continuance until June 1962.

(c) "A Prerequisite for a Sane and Constructive Political Life."

On March 25, 1969 martial law was again proclaimed in Pakistan. As Ayub Khan, the then President, believed that all civil and constitutional authority in the country had been ineffective, he decided that he should "step aside and leave it to the Defence Forces of Pakistan; which today represent the only effective and legal instrument, to take over full control of the affairs of the country".22 Yahya Khan, Commander-in-Chief of the Pakistan Army, declared martial law throughout the country following Ayub Khan's relinquishment of office as President.

In a proclamation issued on the same day, the Commander-in-Chief stated that a situation had arisen in the country in which the civil administration could not effectively function and in the interest of national security it had become necessary to place the country under martial law. In the course of a broadcast the following day, Yahya Khan said that the sole object of martial law was "to protect life, liberty, property and to put the administration back on the rails".23 This is not an objective unfamiliar to administrators of martial law. But he added:

"The martial law administration would make every endeavour to resolve genuine difficulties of various sections of society, including students, labour and peasants."24

He further stated:

"It is my firm belief that sound, clean and honest administration is a prerequisite for a sane and constructive political life and for the smooth transfer of power to the representatives of the people, elected freely and impartially on the basis of adult franchise."25

All these are laudable objectives; but it is uncommon to give a child toilet training by placing it on the rack.

If before the proclamation of martial law, "normal law-enforcing methods had become totally ineffective"26 within twenty-four hours of the proclamation normalcy with a vengeance returned to Pakistan. According to the Information Division of the High Commission of Pakistan in the United Kingdom, wheels of industry started moving in the mills and factories, educational institutions reopened and people were engaged in their normal avocations. Government and non-Government employees who had been on indefinite strike returned to work.27 In Dacca University teachers who had gone on strike returned to duty and students in all faculties attended classes.28 The Pakistan News Digest reported that the agitational atmosphere which had gripped Lahore since November 1968, evaporated on the first morning of martial law and complete normalcy and orderliness prevailed throughout.29

In such a miracle could be worked in twenty-four hours, a continuation of martial law for a decade or two may turn Pakistan into an earthly paradise. But a paradise is seldom presented on a platter. A number of monastic orders until recent years believed that the use of discipline', in the specialised sense of the word, was generally necessary to attain it.30

Whipping is not absent from the punishments contemplated under the martial law regulation.31 Contravention of any one of a number of regulations may be visited by capital punishment. For instance, any person who causes a civil official to be resisted may be sentenced to death.32 In the cribbed and cabined life of Pakistan today, rigorous imprisonment may be strewn like flowers over the heads of all nationals for any minor infraction of a martial law order so that sanity may prevail in political life.33

Could it be said that martial law administration which, like the way to its counterpart in after life, may be paved with good intentions, is the only way to bring about a sane and constructive political life?34

It is emphasised time and again that political parties are not banned in Pakistan.35 Similarly it may be said that tropical plants are not banned in England. If they do not grow on English soil, who is to blame? Though the parties are not banned, their leaders appear to have been interned.36 It is also reported that the administration "continued to arrest en masse persons who are suspected to frown at martial law. Steel-helmeted police are combing the villages for this purpose".37 On April 10, President Yahya Khan emphasised that he had not imposed press censorship. "I have not stopped you from expressing your views", he said, but incidentally mentioned that there were certain martial law restrictions which applied to all citizens.38 One of the martial law regulations which prescribes punishment of ten years imprisonment prohibits any spoken or written criticism of the imposition or operation of martial law.39 In these circumstances on need not be too gullible to believe that "six days after martial law was imposed in Pakistan, all political activities have virtually ceased".40

In the light of this prohibition it is intriguing to consider Martial Law Order No. 6, issued by the Chief Martial Law Administrator. It reads:

Any person who is aggrieved by an illegal act or omission committed by a member of he Armed Forces, police or civil administration, may submit a written complaint to that effect to the Martial Law Administrator or Sub-Administrator of the zone or section in which the complainant resides. The Martial Law Administrator or Sub-Administrator on receipt of the complaint, if satisfied that the complaint rings true, may institute an inquiry into the matter and take such action as he deems fit to redress the grievance an punish the offender.

If there is a familiar affinity between the Provisional Constitutional Order and the various Martial Law Regulations and Orders issued in 1969, and the Laws (Continuance in Force) Order, 1958, and the various martial Law Regulations and Orders issued in 1958, this can probably be ascribed to the inertia of the legal draftsman rather than to an understanding among the generals of the army that Pakistan could be best governed by them.

One of the points made by Yahya Khan in his statement to the press on April 10, is of special interest. He said:

"When a whole system breaks down it needs patience to put the pieces together. While it need not an indeed must not take up years to do this job, it would be unfair to except that we should complete it in days."41

3. Conclusion.— If military dictatorship or some form of despotism, enlightened or not so enlightened, is the remedy for Pakistan's ills, one wonders whether it is not better to call a spade a spade and refuse to misapply a term of English common law. Though it may be conceded that it is difficult for an observer from the outside to make a correct appraisal of the situation, it is doubtful whether in 1958 or in 1969 there was any necessity to declare martial law in the sense in which it is generally understood in the Commonwealth.

If the present experiment in companionate marriage succeeds, as the second attempt appears to have succeeded, and Pakistan prospers in peace and harmony, would Pakistan adopt her own brand of martial law as a permanent feature of her government? This probably is a question which only a prophet can answer. Caesarean operations are not performed on time; and the present writer does not claim that Elijah's mantle has fallen on his shoulders.

Yahya Khan has stated that prior to establishing constructive political life, "the country must have sound, clean and honest administration".42 If by these adjectives he meant martial law, how long the administration will continue before constructive political life is established is anybody's guess. Again, if he meant martial law administration when he referred to "sound, clean and honest administration", there is no reason why such an administration should not be established in every country in the world where the administration is not so sound, clean, or honest. Martial law in the sense in which the term appears to be understood in Pakistan may turn out to be Pakistan's remarkable contribution to the art of government. After all, light comes from the east.

  1. A.B. Keith, Responsible Government in the Dominions, Vol. I, (1912), p. 270. Return to Text
  2. Hough, Military Law, (1855), p. 548. Return to Text
  3. Sir James Mackintosh, quoted in C.M. Clode, The Military Forces of the Crown, p. 486. Return to Text
  4. Quoted in Clode, op. cit., p. 484. Return to Text
  5. Channappa v. Emperor, AIR 1931 Bom 57. Return to Text
  6. Quoted in Muhammad Umar Khan v. Crown, PLR 1953 Lah 828. Return to Text
  7. "The uprising was speedily suppressed by troops under the direction of the colonial governor, Edward Eyre. In the course of the pacification of the island by the army, during a month-long reign of terror, a thousand homes were burnt, nearly five hundred Negroes were killed, and more than that number were flogged and tortured. While restoring order, Governor Eyre had managed to secure the court martial and execution of a personal and political enemy, a Mulatto member of the Jamaica House of Assembly." (B. Semmel, The Governor Eyre Controversy, London, 1962), p. 13. Return to Text
  8. Quoted in B. Semmel, The Governor Eyre Controversy, p. 17. Speaking of the state of siege which in civil law countries corresponds, to a large extent, to martial law of the common law jurisdictions, Plague, one of the central characters of Albert Camus's L' Etate de Siege says: " . . . when I step in, all sentiment goes by the board. So take notice, sentiment is banned, and so are other imbecilities, such as the fuss you make about your precious happiness . . . . Instead of these I give you organization. That will worry you a bit to start with, but very soon you will realize that good organisation is better than cheap emotion. By way of illustration of this excellent precept, I shall begin by segregating all women. This order shall have the force of law. . . . I bring you order, silence and total justice. I don't ask you to thank me for this; after all what I am doing for you here is only natural. But I must insist on your active collaboration. My administration has begun." (adapted from Law and Population Control in Counterinsurgency, Judge, Advocate-General's School, Charlottesville, Virginia, 1965, p. 2.). Return to Text
  9. King Lear, iv, i, 36-37. Return to Text
  10. Ayub Khan recently said, "Every soldier is your own brother" (His broadcast to the Nation on March 25, 1969, Pakistan News, April 1, 1969, p. 4). There was once a brother who queried, "Am I my brother's keeper?" Return to Text
  11. For details see J. Minattur, Martial Law in India, Pakistan and Ceylon, pp. 42-52. Return to Text
  12. Regulation 26. Return to Text
  13. Regulation 30. Return to Text
  14. The Asian Recorder, November 15-21, p. 2349. Return to Text
  15. Regulation 50. Return to Text
  16. K. B. Gallard, Political Forces in Pakistan, 1947-1959, p. 28. Return to Text
  17. Ibid. Return to Text
  18. Dawn, October 31, 1958. Return to Text
  19. Address to the Karachi and West Pakistan Bar Associations, reported in Dawn, December 16, 1958. Return to Text
  20. M. Ahmad, Government and Politics in Pakistan, p. 209. Return to Text
  21. Address to the Karachi Bar Association, January 15, 1959, quoted in M. Ahmad, op. cit., p. 243. Return to Text
  22. Ayub Khan's letter to Yahya Khan, March 24, 1969, published in Pakistan News, April 1, 1969, p. 4. Return to Text
  23. Pakistan News, April 1, 1969, p. 1. Return to Text
  24. Ibid. Return to Text
  25. Pakistan News, April 1, 1969, p. 1. Return to Text
  26. Yahya Khan's broadcast to the Nation on March 26, 1969, Pakistan News, April 1, 1969, p. 1. Return to Text
  27. Pakistan News, April 1, 1969. Martial Law Regulation No. 18, promulgated on March 25, provided for a maximum punishment of fourteen years rigorous imprisonment for "any one who strikes or helps to bring about a strike or propagates a strike". Return to Text
  28. France, Germany and the United Kingdom may be well advised to emulate Pakistan in this respect. Return to Text
  29. Pakistan News Digest, April 1, 1969, p. 10. Return to Text
  30. Geoffrey Moorhouse in his "Against All Reason" (1969), refers to people trying to get disciplines (that is, small whips with which penitents scourge themselves) as recently as 1967. Return to Text
  31. Regulation No. 4 specified the punishments which may be imposed. They include (i) death, (ii) rigorous imprisonment for not more that fourteen years , (iii) whipping not more than thirty stripes, (iv) fine which may be an unlimited amount except where a maximum is mentioned, (v) forfeiture of property or destruction of property. Return to Text
  32. Regulation No. 12. Return to Text
  33. Regulation No. 25. Return to Text
  34. It may be recalled that St. Thomas Aquinas insisted that the monastic life was no more than one of many ways of striving for perfection, not the only way to perfection. Return to Text
  35. Pakistan News, April 1, 1969, p. 1. Return to Text
  36. "Maulana Bhashani and Mujibur Rahman, two popular leaders of East Pakistan, are reported to have been interned and they are not being allowed to see anybody", reports Amrita Bazar Patrika, March 29, 1969, p. 1. Return to Text
  37. Amrita Bazar Patrika, March 29, 1969, p. 1. Return to Text
  38. Dawn, April 11, p. 24. Return to Text
  39. Regulation 6. Any person who brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Chief Martial Law Administrator or any Martial Law authority is liable to the same punishment. Return to Text
  40. Amrita Bazar Patrika, April 1, 1969, p. 7. Return to Text
  41. Dawn, April 11, 1969, p. 8. Yahya Khan is reported to have said on April 22 that he would hold general elections "as soon as possible" and that voting would be under direct franchise on the principle of one man one vote. (Daily Telegraph, April 23, 1969, p. 26). Return to Text
  42. The Times, London, April 11, 1969, p. 6. Return to Text
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