27 September 2012

NLC Scam - Dear Civilians, You are Doing it Wrong

By Xeric

I know, I know, it’s a belated case and after the clarification issued by ISPR there wasn't any need for further explanation. But then I thought this issue needs some more attention; as one, by court martialing its three Generals, Pakistan (Army) is creating history; and two, there are still people around us who will keep on mongering about this issue so that they can meet their daily quota of military bashing.

The thing is (the title) that we Pakistanis have lowered our standards to such an extent that anyone who possesses the art of sensationalizing even the minutest of the issues, almost all of us, without getting into the details or recourse to the other facets of the issue, would fall for the superficial  mirch masala, and from there on the actual issue will be consigned to oblivion, however the illusory details will become the talk of the day.

I say that my dear civilians are wrong in pointing fingers at the military especially after the Army has taken a principle stand over this issue, because if attention is paid to the details and the issue is analyzed objectively, one will find that there isn't anything worthwhile left to criticize, except to wait for the outcome of the court-martial. Funny right? Just keep on reading and you will understand why.

The problem started when media broke the news and instead of emphasizing over the fact that three Generals are under trial, focused on an ill-conceived notion that they have been reinstated pending their court-martial. Now there is nothing wrong in this either for two reasons; first, media will always sensationalize the news so that it can sell. Second, there wasn’t any clarification from the Army’s side as regards to the reinstatement of these Officers. However, this news was enough to provide those in 'love' with the military sufficient ammo so as to have a time of their life.

And this is what I will clarify first. (Please be mindful that I am responding to the queries that have been making rounds on various online foras and social mediums like Facebook/Twitter).

But before that I must explain something of Manual of Pakistan Military Law (MPML), Pakistan Army Act (PAA) and its relation to the Pakistan Penal Code (PPC) as these would be used frequently in the article.

MPML, which was last published in 1957 (and since have been reprinted) contains regulatory laws/acts known as PAA that governs the discipline and conduct of men and women of Pakistan Army, just like in any other military. Uniform Code of Military Justice of the US military can be taken as an example (militaries the world over are governed by their own laws that are usually stricter than the country's civilian laws).

Simply put, PAA is the military version of PPC which governs our civilian courts, only that they are stricter and contain certain provisions which are specific to the Army e.g. Desertion is a military offence.

Ok, here goes;

Reinstatement of the Generals

To put it simply, the Generals were not reinstated, rather were merely taken back on its strength by the Army.

I will explain this further, however there is another thing that needs clarification first; even if the Officers had been ‘reinstated’, heavens would have not fallen, because militaries the world over reinstate and/or reactivate retired soldiers, either for continuation of military service or award of a decoration/punishment. However, in this case the Officer were (only) taken on the strength of the Army so that they can be brought under the jurisdiction of PAA and dealt with accordingly. Ofcourse, only uniformed individuals (and civilians enrolled under the PAA) can be subjected to PAA.

This is what ISPR’s statement said:
It is further clarified that for recording of the Summaries of Evidence, it was essential to bring the accused officers under PAA. Therefore, accused retired officers were taken on the strength of the Army. This was done in accordance with Pakistan Army Act Section 92, read in conjunction with Section 40. The accused officers have neither been re-hired nor reinstated.
Those of you who are wondering about Section 92 or 40 of PAA, be patient as it will explained, however I must clarify that I cannot quote the exact wordings of these section for the obvious reasons and thus would just paraphrase them for your easy assimilation:

Section 92
This Section of PAA deals with what if a person who is no more in uniform had committed a crime while he was in uniform.

The fact remains that the crime was committed while the person was part of the military and hence the military has the right to try him under its own rules/laws, which infact are stricter than its civilian counterparts. And thus PAA 92 (that is to say a Law that draws its powers from country’s Constitution) says that if a person who is no more part of the military (retired, released, dismissed, removed or discharged from service) has committed an offence while he was in uniform may be taken into and kept in military custody and tried and punished as if he was still in uniform.

Section 40
Deals with 'Fraudulent Offence in Respect of Property'.

With this explanation, I am hoping that this query (why/how the Generals were taken back on strength) will be settled.

Will the Officers be Paid and Entitled to Other Privileges?

Unfortunately, though not surprisingly after I had answered and to an extent clarified the previous query on Twitter, certain friends having no further reason to argue resorted to the next rhetoric, which was also popular around certain talk shows. They asked if these 'reinstated' Generals will be receiving their salaries and other privileges - after all, they are the Generals of (the mighty) Pakistan Army?

They were infact trying to suggest that even by penalizing these Officers, the Army would invariably be burdening the tax-payers.

To this end, the following part of ISPR's statement should suffice:
The accused Officers have neither been re-hired nor reinstated. Similarly, their calling back for investigations neither constitutes re-commissioning nor entitles them to pay, or any other privileges.
Bhai, the Officers had been taken on strength so that they can be punished (if proven guilty), not so that they can be awarded some Tamgah.

Army mai Jungle Raj Nafiz hai (Army is not Governed by Laws)

Another notion that i must touch upon came to me as an unpleasant surprise while I was trying to clarify the issue on Pakistan Defence Forums. Certain friends there had tried to portray as if this entire reinstatement-cum-salary-cum-court martial game is being played for a particular purpose - to make the Generals scapegoats by saving other Officers and irregularities, which in turn would be done because of a 'certain' power in the hands of any COAS, namely:

Section 16 of the Pakistan Military Law and Manual of Pakistan (the dude don't even know that it is MPML and not PMLMP):
This Law was a British Army Law which was adopted by both Pakistan and india after the Partition. This Law gives the Power and Authority to the Chief of Army Staff to fire any Army personnel without giving any reasons. The Chief won't face a court martial despite any irregularity. India changed this law and hence we see, that they have Court martialled Top generals but Pakistan Army kept this section to protect their top brass from any litigation.
Talking about his arrest, General (retired) Ziauddin said he was kept in custody for two years at the headquarters of the 111 Brigade. He said that he was told by a junior officer that he (Ziauddin) had been removed from service. Later, he added, he was given a hand-written order that he was removed under section 16 of the Pakistan Military Law and Manual of Pakistan Military Law but he was never court martialled.
According to Ziauddin, the removal orders of any senior officer are to be signed by the prime minister or the president. But his dismissal orders, which were sent to the then president, Rafiq Tarar, were not signed by the latter. Evidently, the dismissal orders must have been backdated and signed by Pervez Musharraf once he took over as president, he conjectured.
Ziauddin said that Musharraf confiscated his property and deprived him of his retirement benefits. The retired ISI chief today lives in a one-canal house owned by his wife. He claimed that for most of Musharraf’s tenure he lived under strict observation and surveillance and most of his former colleagues avoided meeting him.
I am not discussing General Ziauddin's role in the military coup but I am quite concerned that our Military has remained a "Holy Cow" despite so rapid changes around the globe. It's time that Pakistan Army change it's ways and become an accessible institution when it comes to corruption and irregularities.

The above was posted by one KHAN_Sahib here.

Surprisingly,  KHAN_Sahib had suggested that our COAS has certain ultra vires powers, which he can use with impunity, and basing on the same he can dismiss anyone from service without a trial or giving a reason, no questions asked!

Please note that KHAN_Sahib had made this post more than a year ago and as such it would never had merited my attention. However, some hate-mongers thought it would be easy to twist the facts and accuse the Army once again by portraying as if Gen Kayani is probably using the same 'magical powers' (as mentioned by KHAN-Sahib in his above quoted post) to dispose of NLC case; and hence the reinstatement and trial of the Generals through a court martial instead of a civilian court.

To this end I must say, come on people, we are talking of an institution that employs 0.6 million Pakistanis and follows the same rules which are common to all militaries.

Moreover, whereas the COAS, like any other boss do have the powers to dismiss any person by virtue of the powers given to him (and to all Officers) under PAA Section 17 (NOT Section 16 as mentioned by KHAN_Sahib which deals with dismissal of military personnel by the Federal Government), but then as a function of common sense one should have given a thought to the fact that this decision can only be made by the COAS if the accused has been tried and found guilty by a proper court martial during which the accused had been given full chance to defend himself through a qualified defendant!

Janab, the military is not some Darbur where the King would summon people and order them beheaded.

Chornay ki bhi hud hoti hai bhai.... (Even rumor-mongering has limits).

And hence i quote ISPR's statement one more time:
On receipt of the findings of the Court of Inquiry, the COAS considered whether to opt for an administrative action or a formal investigation. Opting for an administrative action would have entailed use of discretionary powers by the COAS, whereas opting for a formal investigation, through time consuming, is obviously much more fair and transparent (liable to public scrutiny), allowing a fair chance to both the prosecution and the defendant. The COAS opted for latter course of action.

This episode by KHAN_Sahib left a bad taste in my mouth and hence I reiterate my position which I have stated at the start of this article that we Pakistanis have reduced ourselves to an ignorant bunch of people who can be fooled by any Tom, Dick and Himesh.

Whereas it is understandable that media and politicians would sensationalize and twist the facts to their own advantage, e-warriors should not be allowed to fool the ordinary minds and thus we as a Nation should be able to separate the wheat from the chaff and remain critical of these 'facts' until they can be confirmed/validated. Or else we would keep on torching everything that will come in our way just like we did on last Friday.

Generals Should be Tried by a Civilian Court

Surprisingly, Raza Rabbani is still asking for the trial of these Generals in civil courts even after ISPR's statement which clearly says the decision whether to try the Officers through a military or civilian courts rested with the COAS who decided in the favor of the former:

On receipt of MoD’s letter at GHQ, COAS as a prescribed officer (Pakistan Army Act Section 94 and Criminal Procedure (Military Offenders) Rules 1970) had to decide whether to proceed against the accused under Pakistan Army Act (PAA) or through a Civil Court / NAB. The COAS decided to proceed under PAA. In November 2010, a high level Army Court of Inquiry was convened, presided by an officer of the rank of Lieutenant General for the purpose of finding out initial facts.

and that the proceedings of the trial have been finalized and awaiting decision of the competent authority to award punishment:
The process required expert scrutiny of records spread over years, held not only by NLC but also a number of other Government departments. Many a documents produced also required forensic analysis for authenticity. Moreover, the case necessitated not one but recording of four Summaries of Evidence which have now been completed and are under consideration of the competent authority.
Basing on the credibility of the evidence accrued through these Summaries of Evidence, the COAS will decide on the next legal step. It is categorically stated that the case will be conducted strictly in accordance with due process of law and those proven guilty of wrong doings will be brought to justice.
 I am sure that Mr Rabbani absolutely understands that:
  • Military courts are faster and stricter than the civilian ones
  • All the actions starting from taking the Generals back on Army's strength to the decision of trying them through a military court has been as per the dictates of the Law which has been mandated by the Constitution of Pakistan 
  • And as the proceedings of the trial has been completed pending the decision of punishment, mongering about it would amount to influencing a matter that is sub-judice 
But still he wont keep his mouth shut because; one, this will get him into the headlines, and two, he very well knows that it will help him score some cheap points amongst a Nation that feeds on sensationalism and emotions.

So People, when the same politicians (and rumor/hate mongers) play with your sensibilities, feed you lies and betray your trust, no one other than yourself is to be blamed, because we as a Nation has been tuned into accepting half baked lies without any recourse to inquisition.

And hence, I suggest that instead of beating around the bush we should concentrate on a more pertinent issue like what punishment(s) (if proven guilty) these Generals will receive and will it deter senior officers, bureaucracy and politicians from going on a free ride with this Nation's wealth?

P.S. Though I will not reveal what is the maximum punishment that can be awarded to these Generals under the PAA, but I can surely tell you that People will not be happy (as usual) with the outcome of this trial.
Reason: Pakistanis (rightly) expect that corrupt individuals should either be hanged or shot dead in some chohraha (because every time the big fish manages indictments), but we have to accept that Laws do no cater for emotions. Lastly, I must clarify that though this time around they will not be able to evade punishment, but we must understand that they would have been penalized to the maximum as per the provisions of PAA and as such welcome the outcome.

Please feel free to comment, I will try my best to respond to your queries.


7 August 2015 - Update: Justice Served!

On 5 August 2015, the inquiry into NLC Scam finally met a closure. According to ISPR:

Maj Gen (retired) Khalid Zahir Akhter has been “Dismissed from Service”, which implies; forfeiture of rank, decorations, medals, honours, awards, seizure of pension, recovery of personal gains, cancellation of service benefits and all other allied facilities including medical etc.

Lt Gen (retired) Muhammad Afzal Muzaffar has been awarded “Severe Displeasure (Recordable)” which in essence is a disciplinary award due to an offence of lesser degree i.e. violation of procedures but no personal gains.
However, as predicted in the second last paragraph of my blog above, some people are not quite 'happy' with the amount of punishment awarded to these Generals - the punishment is less, they say. Further, these people tend to equate these Generals and their punishment with the likes of some Bureaucrats and Politicians who probably were given harsher punishments or were jailed for 'similar' crimes. To clarify this misconception, yet again, the following statement by ISPR should suffice (focus on the bold parts):
In Feb 2009 Public Accounts Committee observed violations in implementation of Board of Directors’ Instructions and rules and regulations with regards to investment made by National Logistic Cell (NLC) that allegedly caused financial losses to the organization. Consequently, Secretary Planning & Development Division constituted an inquiry committee. Though the committee did not accuse any individual for embezzlement or misappropriation; however, it highlighted financial irregularities, lack of transparency and failure to observe rules and regulations caused by reckless decisions of chain of command of NLC. Upon conclusion of the process, the Committee referred case of NLC to the Ministry of Defence for necessary disposal. By November 2010, Army commenced a Court of Inquiry that was followed by recording of Summary of Evidence in September 2011.
Now, those having the basic understanding of simple English will understand what point i intend to make by quoting the above statement. However, those who don't, should understand that these Generals, unlike the Bureaucrats and Politicians they like to take as example, did not actually "embezzle" monies.
Sir, there's a fine line here. So, shake your heads, wipe that filth off your eyes that don't let you see beyond a certain agenda, take a deep breath and try to focus. Just like two murderers; one who actually pulled the trigger, and the other who drove the first guy to the scene of the crime, does not receive equal punishment or just like two absconders in the military; one who Over-Stayed his Leave because he wanted to quit the Army, and the other who Over-stayed Leave because he was unable to get transport due to floods are not awarded similar punishment. Similarly, these Generals, who did not embezzle funds (for personal gains) and those Bureaucrats and Politicians who actually misappropriate funds to fill their coffers cannot be equated, nor should their punishments be compared.
These Generals, contrary to popular belief and opinion, did not 'eat' public money, however did commit a wrong by violating NLC's rules and regulations when they made a decision to invest it (legally), in "good faith" with the aim of benefiting the organization (NLC) through the returns gained from the said investment. Unfortunately, it turned out to be a poor initiative with a low Return on Investment (ROI). In short, the money invested by the Generals did not yield the desired profits and their organization had to bear loss.

Now, as i cannot explain this in simpler English, i'll leave it to the readers to decide if the punishment awarded to them was appropriate of not. But before you decide, understand whatDismissed from Serviceactually means:
  • forfeiture of rank - Cannot call himself Maj Gen (Retired) Zahir Khalid, just Mr Zahir; nothing can be more hurting than this to a soldier.
  • forfeiture of decorations - Cannot use military qualifications.
  • forfeiture of medals - No recognitions of wars, battles he fought or the service he did for peace under UNO etc.
  • forfeiture of honours- No more Hilal-e-Imtiaz etc.
  • forfeiture of awards - No recognition of commendable work done during military service.
  •  seizure of pension - As they say, Left high and dry.
  •  recovery of personal gains - Any monetary benefit earned is to be recovered.
  • cancellation of service benefits - No plot, no house, no land.
  • forfeiture of all other allied facilities including medical etc - His entire family cannot even visit CMH.

 P.S. i  think he would have preferred jail over these. 

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