Re: 1971 War as Declassified by The Government of Pakistan.

The Report of the Commission of Inquiry - 1971 War
as Declassified by The Government of Pakistan.
PART 2 - POLITICAL BACKGROUND:



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Chapter V
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Closing phase of the Ayub regime


In the last few days of January 1968 the then President of Pakistan Field Marshal Mohammad Ayub Khan, fell ill. Although it was not publicly so announced, he had had in fact an extremely severe heart attack and was for some time entirely unable to speak, much less to attend to his duties. The world at large was then informed merely that he had suffered an attack of influenza.

2. It has been suggested that from the moment the President became ill and therefore incapacitated, at least temporarily, General Agha Mohammad Yahya Khan, then Commander-in-Chief of the Pakistan Army, virtually took over control of the President's House. The President ceased to be accessible to the Secretaries and the Ministers and even to his Adviser, who was otherwise very close to the President and through whom, till then most decisions of the President were communicated. The implication is that the President, being to start with unable physically to function, his position even after his recovery deteriorated to little better than that of a figure head. This position continued, more or less, till the time when General Yahya openly took over the government by proclaiming Martial Law on 25th of March, 1969 and designating himself Chief Martial Law Administrator and subsequently President.

3. Now this would, if true, be indeed a startling state of affairs. The political commotion, which ultimately resulted in the Field Marshal abdicating, if that term may be properly employed, came somewhat later, though of course it may be possible for a student of politics to discern even at this time signs of unrest and the shape of things to come. It might be equally true to say that the Field Marshal's illness initiated or gave impetus to a political uprising which perhaps in any case had to come. Other factors, however, also contributed to this as we shall see. Nevertheless, at least upon the surface, the Constitutional government was in power and was carrying on the normal administration in the country and if indeed the Field Marshal was unable due to illness to perform the function of his office, then the Constitution did provide that the Speaker should temporarily assume to himself the powers of the President. If the President was indeed incapacitated due to physical or mental infirmity he could be removed by a resolution of the Assembly (but this was, as is only proper, a somewhat lengthy process entailing medical examination) and after such a resolution the Speaker would step in temporarily and certain constitutional steps would then have to be taken to fill up the place permanently. Of course the expression "physical ormental incapacity" in the Constitution of 1962, as in other similar constitutional provisions, does not and cannot mean that every time the President is ill, even so ill as to be confined to bed, he has necessarily to step down from office. Nor does it even mean that if, for a comparatively short period like a day or two, he was in a state of unconsciousness or coma (as we are told that the Field Marshal was) such steps were either needed or justified. It does, however, mean that if the President is suffering from any illness which is serious enough to handicap his working and to make him incapacitated either for a long time or for an unforeseeable period of time, then the proper steps in the constitution would have to be taken.

4. Viewed in either context, therefore, namely, I) that the President was critically ill for too short a time to invoke the Constitutional provisions, or 2) that he was in fact incapacitated within the meaning of the constitution, the stepping in of the Commander-in-Chief by controlling the President's House and therefore, running the government of the country, would be an extremely serious step in violation of the Constitution. If indeed, General Yahya had done, what he is alleged to have done at this stage, he should at least be guilty of grave impropriety. In the light of the events which later occurred such conduct on his part would, in any case, have a strong bearing upon his good faith when in fact he took over the government of the country subsequently. It is, therefore, necessary to examine carefully the evidence on this particular allegation.

5. The witness who gives strong testimony on this point is Mr Altaf Gauhar who was, at that time, the Information Secretary. Mr Altaf Gauhar is a civil servant of great experience and, we think, of considerable ability. In addition to this he was, perhaps for these very qualities, greatly trusted by the Field Marshal. We have the evidence of various people, who were certainly in a position to know, that he enjoyed a position of peculiar confidence with the then President. Indeed General Yahya in his evidence said about him that at the material time in the eyes of Field Marshal Ayub Khan, Altaf Gauhar could do no wrong. An allegation of this kind, therefore, coming from a person of the category of Altaf Gauhar calls for serious consideration. According to Mr Altaf Gauhar, he was in Dacca at that time and the last time he had seen the President was on the 28th January, 1968, as a healthy man. In Dacca Altaf Gauhar was informed that the President's broadcast, which was a regular first of the month feature, was to be postponed and he was told that this was due to some throat trouble that the President had developed. He, therefore, kept to his programme and returned from Dacca on the 3rd or 4th February. Arriving back in Pindi he was told by the Public Relations Officer to the President, who was an officer of the Ministry of Information, that the President was quite seriously ill. Naturally his first reaction was to rush to the President's House but he could not do so because his own daughter had hurt herself and he wanted to see a doctor about her treatment. Going to the President's House next day, he found the main gate barred and was told by the gate guard that nobody was allowed in. Mr Altaf Gauhar spoke to his Minister, namely, Kh Shahabuddin and through him to Mr Fida Hassan, Adviser to the President.

6. In order to understand why speaking to Mr Fida Hassan was regarded as important it is necessary to digress a little and explain what Mr Fida Hassan's status was. He was Principal Secretary to the President from June 1966 but before the time that we are speaking of the President had come to lean upon him so greatly that he desired to give him Cabinet rank. As to this, Mr Fida Hassan asserts (and we have no reason to believe to the contrary) that he was at no time a Political Adviser to the President but that he was merely what could be described (without meaning to detract from his status) as a kind of Personal Assistant with the emphasis strongly upon the word "Personal". However, it was felt that his elevation to Cabinet status might be regarded as having a political meaning or result in drawing Mr Fida Hassan into the vortex of politics which apparently it was the desire neither of the President nor of Mr Fida Hassan to do. He was, therefore, given the status of an Adviser. It would be seen, therefore, that Mr Altaf Gauhar's telephone to Mr Fida Hassan or, rather requesting his own Minister to do so was really an attempt to reach somebody close enough to the President in a personal sense to obtain authentic information of the condition of the President and of the reason perhaps why the President's House was becoming a kind of prohibited area.

7. Despite, however, contacting Mr Fida Hassan on the telephone and Admiral A.R.Khan, who was then Home Minister and Defence Minister, Altaf Gauhar got the impression that nobody knew the exact condition of the President. Mr Altaf Gauhar was insistent that the people should be informed about the condition of the President and some health bulletin should be issued, and upon that he was taken ultimately to the President's House where the Personal Physician to the President gave him a bulletin that could be broadcast; this bulletin stated that the President was suffering from cold and fever. A few days later, however, Mr Altaf Gauhar was summoned to the presence of the President himself whom he found lying in bed with a glass of orange juice in his hand and accordingly Mr Altaf Gauhar returned feeling relieved and re-assured. Nevertheless, Mr Altaf Gauhar states that from his conversation with the Personal Physician to the President and members of the President's family he gathered that the only person who had access to the President during these days was the Commander-in-Chief. This meeting between the President and Mr Altaf Gauhar was between the 5th and the 10th of February. A few days later at about mid-night the Personal Physician telephoned Mr Altaf Gauhar and told him that the meeting which he (Altaf Gauhar) had arranged between the President and the Governor of West Pakistan should be put off, as the President was unwell; the witness took this to mean that the President had had a relapse. After the relapse the condition of the President became critical and it appeared that his recovery would take a long time. Accordingly, Mr Altaf Gauhar sent a note to Mr Fida Hassan stating that people were making allegations and demanding that the constitutional provisions for the appointment of the Speaker as Acting President should be implemented. There was no response to this note and Mr Altaf Gauhar alleges that not only the President was inaccessible but, by this time, even Mr Fida Hassan had ceased to be available.

Eventually, however, the Information Minister managed to get in touch with the Adviser and suggested that, since the country was facing a serious situation, the Cabinet should meet to discuss the matter. As a result a Cabinet meeting was convened and was presided over by Kh Shahabuddin, but having met, it dispersed without doing any real business and everybody was told that the President was now "in good shape". Kh Shahabuddin suggested that the Cabinet should meet every Wednesday as usual but nobody considered it necessary. Mr Altaf Gauhar asserts that he got the impression that something mysterious was going on behind the scene, of which he had no personal knowledge but which he infers from what has already been stated and from the additional fact that the Ministries, directly responsible for issuing to the public any press note on these very serious matters, namely, the Ministry which he himself headed and the Law Ministry, were not being informed at all. It is on matters like these that he rests his conclusion that the Commander-in-Chief had assumed effective control over the President's House; he states that the only person who had direct access to the President apart from Mr Fida Hassan was the Commander-in-Chief and indeed, to put the matter quite bluntly, what Mr Altaf Gauhar suggest is that from the point of time that the President fell ill, namely, the 28th of January, 1968, until the fall of Ayub Khan on 25th March, 1969, General Yahya Khan dominated the President, acquired effective control of the President's House and was really running the country. He asked us to believe that, not only for the comparatively short period the President was physically incapable of giving any orders himself, he (General Yahya) was in real control but that, even after the President regained a measure of health, he was merely a puppet whose actions were directed by General Yahya alone.

8. This extreme position, however, does not find support from the evidence of other witnesses who had as much opportunity as Mr Altaf Gauhar for judging the condition of the President and what was going on in President's House. Indeed one also must remember that, on his own version, Mr Altaf Gauhar was not in the West wing when the President fell ill and returned to Rawalpindi only on the 3rd or the 4th February. Consequently he is not even a direct witness as to what took place in the first week of Ayub Khan's illness.

9. Mr Fida Hassan has stated that the President was, only for a very short time, completely unable to speak and that he himself (Mr Fida Hassan) was allowed to see the President on the third day of his illness, i.e. probably the 2nd of February. At least from that time onwards the President, although of course weak having suffered a major heart attack, was in full possession of his sense and equal to comprehending intelligently what was said to him and to respond thereto. It is of course quite understandable that, even so, it would be considered desirable not to place before the President any work excepting such as, by reason of its importance and urgency, justified interference with the rest with it was desirable for him to have. A system then apparently developed, rather than was officially originated, whereby all communications to the President either from a Secretary or a Minister individually or as a result of Cabinet recommendations were sent to the Adviser who then obtained the orders of the President. In itself this was of course nothing new; this was a recognised channel of communication to the President. Nor we are able to see that there was any constitutional impropriety in doing so. The ministers had (and we are of course talking of the period earlier than the illness) direct access to the President who himself presided over Cabinet meetings. It now became usual for the Adviser to obtain the President's orders and write a note stating what the President's decision on the matter was. In some cases, however, perhaps because of legal necessity, the President would initial or sign on a file as for instance in the case of the promulgation of an Ordinance. Mr Fida Hassan himself claims to have seen the President for the first time after his illness on or about 2nd February and the picture which he presents is no doubt of a sick man, weak and in need of rest but one who was fully alert.

10. Another witness who was close to the President and whom we have examined was the then Law Minister Mr S.M. Zafar. He also heard, as did others, of the President's illness and he was summoned to see the President on 30th January, 1968. On this day Mr Zafar did not see anything abnormal in the condition of the President, due regard being had of course to the fact that he had undergone a severe heart attack. Mr Zafar did notice marks on the President's nose which seemed to indicate that oxygen had been administered to him, but the President appeared cheerful and was sipping a glass of orange juice.

11. We have also examined a number of other persons who were Secretaries to the government at that time, e.g Mr Ghiasuddin, Mr Roedad Khan, Mr Riazuddin, and Mr M.H. Soofi, none of these gentlemen painted anywhere near the same sort of picture as Mr Altaf Gauhar.

12. Mr Altaf Gauhar himself virtually contradicts his own assertion when he says in the later part of the deposition that after his recovery the Field Marshal went to England for check up. He had recovered a great deal by the time he came back from England and reverted to normal routine. Now, however, according to Altaf Gauhar his reactions became much slower and he became a less determined man in that if one argued with him sufficiently strongly he would modify his own position. He had not the capacity for quick and firm decision which was earlier one of his strong points. Categorically Mr Altaf Gauhar stated that there was no question of the Field Marshal having quit the scene or even of any body flouting his orders but merely that he had became weaker and less decisive.

13. General Yahya himself was questioned by us as to his conduct immediately after the President's illness. According to him, the first he knew about it was when the then President's daughter, Begum Nasim Aurangzeb, telephoned to the General to tell him about it. The lady addressed General Yahya as "Uncle" and seemed quite distressed. As a consequence General Yahya went to the President's House, spoke to the members of the family and showed his solicitude and anxiety. He was a frequent visitor to the President's House in those days, and he no doubt must have spoken to the President's physician. From this circumstance alone, however, we are unable to draw the sinister inference which Mr Altaf Gauhar has made. General Yahya was a senior, indeed the senior most, officer of the Army and had been closely associated with the Field Marshal whose protege in the army he was. As Commander-in-Chief, the Field Marshal had placed a great deal of reliance on General Yahya who was, at the time when the Field Marshal was appointed Commander-in-Chief, a Brigadier. He relied upon him a great deal in working out and implementing many schemes relating to the Army. As an old colleague, it is obvious that he must have developed a certain amount of family relationship with the President and we can see nothing incongruous in Begum Nasim Aurangzeb telephoning to General Yahya at such a time or in his going to President's House immediately and thereafter frequently. It is also understandable that he must have had some conversation with Colonel Mohiuddin who was the President's Personal Physician and we cannot regard the fact that his physician was an army doctor as a matter designed to facilitate the Commander-in-Chief's hold over the President. Colonel Mohiuddin had been the President's physician for about six years by that time and, even before his appointment, the Personal Physician to the President had always been an army officer. We think, therefore, that it would be attributing too much to General Yahya on too slender a foundation or even no foundation at all to conclude that no sooner had the Field Marshal fallen ill then he gathered to himself all the reins of power.

14. A little before the President's recovery a conspiracy was unearthed, the object of which was alleged to be the secession of East Pakistan and which has since come to be known as the Agartala Conspiracy, deriving its name from an Indian town near the border. During the course of investigation the persons whose names transpired as conspirators included some members of the defence forces as well as civilians and the question apparently arose whether these should be tried by a Court Martial or otherwise. Clearly persons who were not amenable to the disciplines enforceable against each of the services could not be so tried. Pending a decision on this question the suspects were held in preventive detention, in the list of the persons so held one name, which was to figure prominently later on, was absent namely that of Sheikh Mujibur Rahman. One explanation that has been offered is that there was no evidence at that time to connect him with the crime or, to put it more accurately, in the evidence, till then discovered he was referred to by a code name and it had not till then been discovered that the code name referred to him. When on subsequent investigation this was found to be the case, another notification was issued in which Shaikh Mujib's name did appear. Another explanation that is offered is that Sheikh Mujib was at the time of the earlier notification already in preventive custody and that it was, therefore, unnecessary to pass any fresh order the object of which was solely to keep him in detention; of course as soon as the forms of trial had been decided his name would have had to appear in the list of accused persons just as much as any other person concerned with the crime and it did.

15. Mr S.M. Zafar who was the Law Minister at the time states that he knew nothing about the case until he read the first of these notifications and that he really came into the picture only when the question of the proper forum of trial arose. According to him the Commander-in-Chief was extremely anxious not to permit members of the defence forces to be tried by any but a military tribunal. One might question whether, even by the segregation of the accused belonging to the defence forces, it would have been possible to try them all before one Court Martial, as they did not all belong to the same service. Be that as it may, the choice then was between having at least two separate trials, one before the Court Martial and another before a civilian tribunal, with the obvious consequent risk of conflicting decisions. It is in that connection, we are told, that it became necessary to have frequent conferences with the Commander-in-Chief; that a series of such meetings did take place at GHQ which the Law Minister as well as the Defence Secretary and the President's Adviser attended, admits of no dispute. All the persons concerned have admitted that this in fact happened. We confess that we feel somewhat skeptical of this being the sole or even a sufficient reason for conferences with the Commander-in-Chief. According to General Yahya, even after the trial started, he was constantly consulted and the explanation that he puts forth is that grave questions of military law were involved and it was necessary, therefore, for him to be frequently consulted. Assuming that such questions were indeed involved, it does not seem to us likely, as General Yahya expressly asked us to believe, that the Commander-in-Chief of the army should be expected to be the foremost expert in military law. We should have imagined that the relevant departments of the army namely the Judge Advocate General's department, should have been far more appropriate. In the final result to assist Mr Manzoor Qadir who appeared for the prosecution, Group Captain Aslam was selected; he had a fairly long practice at the bar before he joined the Air Force in which for a long number of years he worked as a Judge Advocate General or in that department.

16. It was eventually decided that a tribunal consisting of Mr Justice S.A. Rahman, a retired Chief Justice of the Supreme Court, Mr Justice M.R. Khan and Mr Justice Maqsumul Hakim sitting judges of the High Court of East Pakistan should try the case. The tribunal accordingly commenced its hearing at Dacca.

17. It is necessary to go back a little and state something of the background of Sheikh Mujib. Sheikh Mujib was a student leader just before Partition and took part as such in the Muslim League movement for the achievement of Pakistan. Subsequently, he became one of the lieutenants of the late Mr H.S. Suhrawardy in the Awami League, which name it acquired after various evolutions in the course of which it was known at first as the Awami Muslim League. What is presently important is to note that in 1966 a convention was called in Lahore to voice an organised opposition to the regime of Field Marshal Ayub Khan, the convener of which was Nawabzada Nasrullah Khan. The convention was attended by Sheikh Mujib and it is here that the famous Six Points programme was first made public. It has been variously suggested that the Six Points were not authored by Sheikh Mujib but in fact by a West Pakistani civil servant and Mr Altaf Gauhar's name has been suggested in this connection. It is unnecessary to go into the question. Suffice it to say that it is quite clear that some civil servants belonging to East Pakistan sympathetic to the idea of East Pakistan attaining a very large measure of autonomy, if not independence do appear to have taken part in this. It is not, we feel, the actual drafting of the words which is important nor can we believe that the leadership in the Awami League or in any case that associated with Sheikh Mujib was so bankrupt in language that it could not draft such a programme without the help of a West Pakistani. What is important is that the idea was conceived before the 1966 convention to which we have referred. Just before the convention a copy of the Six Points had been sent to Mr Nurul Amin, leader of the Pakistan Democratic Party (now Vice President of Pakistan), who showed it to another member of his party, Mr Mahmud Ali (now Presidential Adviser) and both agreed that it contained the seeds of secession which they could not support. Mr Nurul Amin and Mr Mahmud Ali were under the impression that the former alone was the incipient of the copy but they were surprised when at the Convention Sh. Mujib suddenly and to the surprise of everybody, came out with the Six Points, the language being precisely the same as that which had been shown or sent to Mr Nurul Amin earlier in Dacca.

18. It will be useful to reproduce the Six Points as they then stood:-

Point No. 1: The constitution should provide for a Federation of Pakistan in its true sense on the basis of the Lahore Resolution, and Parliamentary form of Government with supremacy of Legislature directly elected on the basis of universal adult franchise.

Point No. 2: Federal government shall deal with only two subjects, viz; Defence and Foreign Affairs, and all other residuary subjects shall vest in the federating states.

Point No. 3:
A. Two separate but freely convertible currencies for two wings may be introduced, or

B. One currency for the whole country may be maintained. In this case effective constitutional provisions are to be made to stop flight of capital from East to West Pakistan. Separate Banking Reserve is to be made and separate fiscal and monetary policy to be adopted for East Pakistan.

Point No. 4: The power of taxation and revenue collection shall vest in the federating units and that the Federal Centre will have no such power. The Federation will have a share in the state taxes for meeting their required expenditure. The Consolidated Federal Fund shall come out of a levy of certain percentage of all state taxes.

Point No. 5:
i) There shall be two separate accounts for foreign exchange earnings of the two wings.
ii) Earnings of East Pakistan shall be under the control of East Pakistan government and that of West Pakistan under the control of West Pakistan government.
iii)Foreign exchange requirement of the Federal government shall be met by the two wings either equally or in a ratio to be fixed.
iv) Indigenous products shall move free of duty between two wings,
v) The Constitution shall empower the unit Governments to establish trade and commercial relations with, set up trade missions in and enter into agreements with, foreign countries.
Point No. 6: The setting up of a militia or a paramilitary force for East Pakistan.
The convention broke up on this question.

19. A movement which was generally against the Ayub regime and the Constitution which had been promulgated by the Field Marshal was after the Tashkent Declaration gradually building up, but not until well after the President's illness did it start really gathering momentum.

20. Now this movement was not the movement of any one particular party nor was there one undisputed leader as its head or even a group of persons who could guide the movement and channel it towards any particular objective. It is true that some prominent politicians were associated with it, of whom particular mention may be made of Mr Z.A.Bhutto, now President of Pakistan, who in September 1967, had started to organise a new party called the Pakistan People's Party. Students, politicians, peasants and workers were all drawn into the movement and hartals and processions became a matter of daily occurrence. There was, however, neither cohesion nor union of object except only that the common demand was the toppling of the Ayub regime and the scrapping of the Constitution which he promulgated in 1962. What was to replace the scheme of things was not a matter of agreement though a broad stream of consensus did seem to emerge that the new set up should be a federal parliamentary structure. The immediately preceding period of little more than a decade seemed to have identified in the minds of the people the presidential system with dictatorship. It was essentially, therefore, a movement of rejection and there were not one or two clear political parties enjoying the confidence of the public and committed to a specific programme in the sense in which the All India National Congress or the All India Muslim League dominated the scene in the pre-independence days, each with its own programme albeit in conflict with each other but agreed upon the concept of total independence of the country. We emphasis this at the moment because it will be seen that when President Ayub Khan finally decided to negotiate with the parties there was not a specific leader or leaders or party or parties who could negotiate a demand or accept terms; in our opinion this was at least a factor which contributed to the manner in which the Round Table Conference, later called, ended. By the time Mr Bhutto was arrested on the 12th of November, 1968, under the provisions of the Defence of Pakistan Rules, he had undoubtedly become themost prominent person in the agitation and it did appear on the surface that he was leading the movement and to a large extent, he was in fact leading it. That the movement continued, however, after his arrest in an indication more of the feelings that had been generated or perhaps induced to come to the surface rather than a continuation of what had been done by Mr Bhutto, though others, till then unknown in the political field, purported to continue his movement. In the Eastern Wing Sheikh Mujibur Rahman was also by now a figure of great political importance though he had not yet attained the stature which later was to be his. Nevertheless, neither Mr Bhutto nor Sheikh Mujibur Rahman were at that time in a position to come to a settlement with the President or with each other or to cry a halt to the street agitation. There is, therefore, justification for the view that instead of calling a Round Table conference the President could have unilaterally made at least the concession to which he was ultimately to agree and then left the rest to be sorted out by usual mechanics of politics which would include electioneering on different programmes. It is easy, however, to be wise after the event and perhaps the Field Marshal cannot appropriately be blamed for deciding instead to talk to the people. If history had taken a different turn perhaps he might equally well have been blamed for taking action even at that late hour still unilaterally and, therefore, dictatorially.

21. Alternatively he could have taken the simple step of saying that, as the people were not satisfied with what he had done, he would proceed to restore the position as it stood immediately before he took over in 1958 but even this would have necessitated a change by constitutional means, that is by using the same National Assembly virtually to enact a new Constitution in the guise of a Constitutional amendment. Under the 1962 Constitution a 2/3 majority was needed and the President's party, namely, the Convention Muslim League certainly had that much majority. But it is an open question whether that party, not disciplined in the usual mode of political parties and centring around the person of the President himself could have been persuaded to pass an amendment merely because of its loyalty to Ayub Khan when the later was seeking to efface himself from the scene. Perhaps in that event the very thing which bound this party together having disappeared the party, not being wedded to the programme of reverting to the 1956 Constitution, may not have responded; whatever be the merits of these various views as to how the constitutional tangle could be solved, the fact remains that there was the inherent difficulty already referred to in the path of negotiations.

22. Accordingly the Field Marshal decided to call a Round Table Conference of the leaders. At a loss to decide whom to invite he decided to ask Nawabzada Nasrullah Khan, the Convener of the PDM, to choose the persons. Nawabzada Nasrullah Khan issued invitations to leaders of the various parties which had merged into the PDM and also the others who combining with the PDM called themselves the Direct Action Committee, but expressed his inability to invite those who were not members of this organization or rather combination of organizations. Notable among these were Maulana Abdul Hamid Khan Bhashani, leader of the NAP (Bhashani Group) and Mr Z.A.Bhutto, Chairman of Pakistan Peoples Party. On the 17th February, 1969, the emergency was withdrawn with the result that the Defence of Pakistan Rules were no longer in force and those detained under it were released; these included Mr Z.A.Bhutto. The President, therefore, invited Maulana Bhashani and Mr Bhutto, but though neither of them eventually attended, the latter at least asked in what capacity he was called and was duly informed that it was as Chairman of Pakistan Peoples party and not in his individual capacity.

23. On the 17th February, 1969, various important persons invited by Nawabzada Nasrullah Khan did come to Rawalpindi but not to the Conference Table. We think it is only partly true to say that this was by reason of the fact that the DAC had not been able to agree upon all the demands that it would make. The main reason centred round Shaikh Mujibur Rahman.

Re: 1971 War as Declassified by The Government of Pakistan.

24. As soon as the President asked Nawabzada Nasrullah Khan to issue invitations to the Round Table conference the question of Shaikh Mujibur Rahman's participation in the Round Table Conference arose. The Shaikh was of course in custody undergoing a trial at Dacca. It having been left to Nawabzada Nasrullah Khan to invite whom he chose the problem of the President was not whether or not to invite Shaikh Mujibur Rahman; the question really was he would come, whether as a free man and, if not, under what degree of restraint. Of course interlinked with this question was also the question whether Shaikh Mujibur Rahman would consent to attend and if so, what degree of restraint he would accept in coming. To start with it was considered sufficient that he should not personally come but that he should be represented by a member of his party in whom he reposed sufficient confidence. The Democratic Action Committee, however, soon insisted that the personal presence of Shaikh Mujibur Rahman was necessary. Mr Mujibur Rahman agreed to come under parole. As we understand the word "parole", it means that a person who is in custody is released for a particular purpose or specified duration of time being bound to return to custody when such purpose was served or such period of time terminated. But we have also been told that he was not coming strictly under parole but under the Army's open custody and this is the version put forward and supported by General Yahya Khan. This expression, it would mean that the persons concerned could come as a free man temporarily able to move about without restriction but constantly accompanied by a military officer. The military officer would have no power to direct him to go to a particular place or refrain from doing so but would have a right to insist that he should accompany him at all times. No sooner this had been agreed to, however, then a demand was made that he must come on bail and to this again, it appears, Shaikh Mujibur Rahman agreed.

25. Two things happened, however, at this stage - one of which at least is not entirely comprehensible. Two ministers of the CentralGovernment, namely, Khawaja Shahabuddin and Admiral A.R.Khan went to Dacca and met the Shaikh. We should have thought that the purpose of these emissaries would have been to persuade the Shaikh to come to the conference. It has, however, been suggested that the purpose was to dissuade him from coming or at least to dissuade him from coming until he came as a completely free man, without the threat of a trial still hanging over him. It has been pointed out that Admiral Khan was a great personal friend of General Yahya Khan and the suggestion clearly is that General Yahya Khan was interested in escalating the demands of Shaikh Mujibur Rahman at that stage, the eventual purpose being the long and far-sighted one of ensuring that the Round Table Conference did not meet with success. We pass on for the time being.

26. The other event that took place which also may have a distinct bearing upon Shaikh Mujibur Rahman's conduct was that one of the accused persons in the Agartala Conspiracy trial, one Sergeant Zahoorul Haq, was killed on the 17th February, 1969. The official explanation given was that in the morning while returning from the lavatory Sgt. Zahoorul Haq attempted to escape and was killed in an attempt to prevent his escape. There are several matters which make it difficult to accept this explanation. In the first place a stage had already come when the Tribunal was becoming convinced that against some of the accused persons at least there would not be sufficient ground to justify conviction and indeed, immediately before this incident the Prosecutor had agreed to make a statement in Court of the names of the persons against whom he no longer intended to proceed. Sergeant Zahoorul Haq was one of those persons and it must surely have been obvious to counsel for defence that his name was at least likely to figure on this list. Quite apart from the fool-hardiness of the attempt to escape, therefore, Sergeant Zahoorul Haq was one of the accused persons who had, at that particular stage the least incentive for making such an attempt. The Army Guards were in any case dealing with an unarmed man and it surely should have been a fairly simple thing for them to have so injured Zahoorul Haq as to prevent his escape without killing him; he could have, for example, been shot in the leg. After he was killed his dead body was made-over to his relations and permitted to be carried in a public procession. The Agartala Conspiracy Trial was not an ordinary criminal case. It was a sensational case which was being given full publicity in the press daily. The trial itself was presided over by a retired Chief Justice of the Country with whom were sitting two Judges of the High Court. Public feelings were already running very high, and in these circumstances it needed no profound political sagacity or administrative experience to realise that the permission to parade the body in such a fashion would lead to disturbances. It did in fact lead to very serious disturbances in the course of which some houses were burnt including that occupied by the Chairman of the Tribunal who was forced to escape barefoot in his pyjamas.

27. In the meantime it had been suggested as we have seen that instead of being released on parole the Shaikh should be released on bail. Government agreed and the Deputy Attorney General was instructed not to oppose the application for bail which would be made on behalf of Shaikh Mujibur Rahman and which would be signed by him.

28. While on the one hand heat was inevitably engendered by this incident, on the other it provided either a reason or an excuse for Shaikh Mujibur Rahman refusing to be released on bail. The very day after Zahoorul Haq's death was the one on which this bail application was to be presented but on the previous evening Shaikh Mujibur Rahman flatly declined to sign the application. We have also been told that in the meantime there was a flurry of telephone calls from Rawalpindi to Begum Mujibur Rahman in Dacca, the calls being made mainly from the telephone of Khan A Sabur, an East Pakistani Minister of Ayub Khan's Cabinet. The evidence on this, however, is vague and yields no satisfactory conclusion.

29. The alternative now was to proceed with the Round Table Conference without Shaikh Mujibur Rahman or to withdraw the case against him. It was decided to withdraw the case but nevertheless, the Law Minister, not wishing to take so final a step, urged the President to withdraw the ordinance setting up the Tribunal which was trying the case instead of withdrawing the case itself. The distinction of course is clear; the withdrawal of the case would have meant the acquittal of Shaikh Mujibur Rahman and as a result, immunity from a fresh prosecution; the withdrawal of the ordinance, on the other hand, merely meant that the Tribunal would be no longer competent to try Shaikh Mujibur Rahman who himself, however, would continue to be liable to prosecution at any future time. In practical terms, however, at that stage the distinction meant little - in either event Shaikh Mujibur Rahman was no longer facing a trial and completely free to move about.

30. The Round Table Conference eventually met on the 10th of March, 1969. The political parties which were represented were combined under the Democratic Action Committee and the only persons of any consequence who refused to attend were Maulana Abdul Hameed Khan Bhashani and Mr Z.A.Bhutto.

31. In between the two sessions of the Round Table Conference another very curious event took place and this was a meeting between General Yahya Khan and Sheikh Mujibur Rahman at the former's residence. When this fact came out in the evidence for the first time, we were entirely incredulous. We could not find it possible to believe that General Yahya Khan, the Commander-in-Chief of the Army, who had taken no interest in politics and who would, at that time, have no interest in politics should talk with Shaikh Mujibur Rahman who was a politician first and last and with whom we have no reason to believe he had any kind of personal equation. The suggestion was that it was Mr Altaf Gauhar who arranged the meeting and who was present at that time and that General Yahya persuaded Sheikh Mujibur Rahman to believe that if the Round Table Conference failed, he General Yahya, would not agree to the imposition of Martial Law. This was with a view to ensuring that Mujibur Rahman was not deterred from presenting an extreme a proposal as he wished by the fear that its non-acceptance would result in Martial Law. Clearly the extreme proposal thought of was the advocacy of Six Points, which was likely to be met with bitter opposition from West Pakistan. If, therefore, Shaikh Mujibur Rahman could be persuaded to insist upon Six Points as a condition for political settlement at the Round Table Conference the Conference was obviously doomed to failure. Whether or not the Six Points were equivalent to a demand for secession is a matter upon which we will enter in more detail later on; at the moment let it suffice to say that it was at least of such a nature that West Pakistani leaders would be justified in believing that it either meant secession or clearly opened the way to it.

32. Subsequently, however, evidence has been so unanimous that such a meeting took place including the evidence of two out of the three principal persons concerned, namely, General Yahya Khan himself and Mr Altaf Gauhar that we are left in no doubt that it occurred. We suffer of course from the handicap that we are not able to obtain, at present, the evidence of Shaikh Mujibur Rahman himself. Mr Altaf Gauhar's version as well as that of General Yahya Khan as to the time and place of this meeting is much the same except that Altaf Gauhar does not admit that he was actually present at the meeting. So far as Altaf Gauhar is concerned the suggestion for a meeting emanated from Field Marshal Ayub Khan himself who wanted Mujibur Rahman to receive a re-assurance from General Yahya Khan that Martial Law was not in the offing. Therefore, Altaf Gauhar was asked to take Mujibur Rahman to General Yahya's house to be re-assured that the Round Table Conference was a genuine effort to achieve political solutions and not merely an exercise which was being undertaken to justify the imposition of Martial Law. The reason why Altaf Gauhar was selected as an intermediary is probably to be found in the fact that he was trusted by President Ayub Khan and had also known Shaikh Mujibur Rahman for a long time by reason of his service in East Pakistan. We refrain from adducing as a possible additional reason the allegation that Altaf Gauhar himself was politically, though calendestinely, associated with Mujibur Rahman and by reason of some common friendship, since we do not think that these matters are clearly established and Altaf Gauhar's selection can be explained even otherwise.

33. General Yahya's own explanation as to why Mujibur Rahman was asked to see him was somewhat different. According to General Yahya, Sheikh Mujibur Rahman was in fact grovelling for mercy and could be persuaded to do almost anything. General Yahya Khan said that the Field Marshal believed that the army had a special equation with Shaikh Mujibur Rahman and that the Field Marshal was probably right in thinking so inasmuch, as during his trial for the Agartala Conspiracy, Mujibur Rahman had been in army custody and the army had been particularly nice to him. Accordingly, to use General Yahya's own language, Mujibur Rahman was asked to see General Yahya in order that the latter "might read the Riot Act to him." In other words, the interview was for the purpose of seeing to it that Mujibur Rahman was in a sufficiently amenable frame of mind when he attended the Round Table Conference. We are not impressed by this explanation. So far from being amenable, Sheikh Mujibur Rahman's attitude at the Round Table Conference was harder after he met General Yahya Khan. His custody in the Agartala case by the Army could hardly have had the effect of endearing the army to him. At any rate we cannot see how this endearment should have extended to General Yahya Khan personally. If indeed that was the real explanation one might have expected that some officer, who had had the custody of Mujibur Rahman or who had personally seen to it that Mujibur Rahman enjoyed some conveniences and comforts and by whom, therefore, Mujibur Rahman was favourably impressed, would have been called from Dacca for the purpose.

34. We have had a fair degree of evidence by now of Mujibur Rahman's utterances during and after the Round Table Conference which would throw some light upon what General Yahya told him that night. While the Conference was in progress it was suggested to Mujibur Rahman that it was difficult at a conference of this kind that all the parties should be unanimous upon each detail, nor was that necessary for achieving the object of a conference of the nature of the Round Table Conference. It was suggested to him that a large measure of unanimity having been achieved upon major points and the Field Marshal having agreed that he would not in any case continue after the agreed measures had been enacted into the Constitution, the wiser course would be to accept what was given and to allow the other issues to be worked out in the normal political manner and in the absence of both Ayub Khan and the original 1962 Constitution. It was further suggested that this was a golden opportunity not to be lost and that rejecting this proposal might provoke the imposition of Martial Law with all its consequences. To this, Mujibur Rahman is said to have answered that he did not fear Martial Law. Now of course this expression is capable of two meanings. It might mean (in the absence of the background to which we have referred and without the advantage of hindsight which we now have, we would have agreed that it did mean) that the Shaikh was not to be deterred from what he felt was the right path, by threats of Martial Law. On the other hand it could mean (and with this background we are inclined to believe it did mean) that the Shaikh had no fear or reason to believe that Martial Law would actually come. Later after Martial Law had been imposed Shaikh Mujibur Rahman in fact did say that he had been led to believe that Martial law would not in any case be imposed.

35. With this attitude of Mujibur Rahman and his insistence on a programme which would necessarily meet with opposition at least from some sections of West Pakistan politicians, the result of the Round Table Conference was a foregone conclusion. Indeed Field Marshal Ayub Khan in his final broadcast to the nation obliquely suggested as much when he said "some people suggested to me that if all these demands were accepted, peace would be restored in the country. I asked them in which country? For the acceptance of these demands would have spelled the liquidation of Pakistan."

36. It has been suggested that the situation could yet have been saved by the Field Marshal if he had accepted the agreed demands for which in fact the draft amendments were made ready without conceding so extreme a measure even orally. We are prima facie inclined to agree with this view but do not consider it necessary for our purposes to arrive at any final finding because the motive or the wisdom of all the steps which Field Marshal Ayub Khan took or might have taken are not directly an issue before us and relevant only to the extent that they have a bearing on General Yahya's own intentions.

37. The Round Table Conference ended on the 13th of March, 1969. The Field Marshal had already earlier announced his intention not to continue as President after the amendments had been adopted. The parties had been invited to send any other proposals for constitutional amendment without of course it being agreed that they would be accepted. The two Governors were replaced. The Governor of East Pakistan had already become an extremely unpopular person, partly, due to his own unacceptability in that province and partly as representing Field Marshal Ayub Khan. The Governor in West Pakistan had also by and large not proved effective. On the 17th of March, 1969, Mr Yusuf Haroon was appointed Governor of West Pakistan and on the 22nd, Dr M N Huda, in East Pakistan. Apparently some cooling of tempers had been taken place though upon this point there is a divergence. Some believe that the Governors had been in office for too short a time for anybody to say that the change had diminished the tempo of feelings while others think that the mere fact that they had been appointed or rather that the old ones had been removed, was itself sufficient to lower passions. One cannot help feeling at any rate that the time had not come on the 25th of March, when any desperate measures were called for.

38. The RTC ended, therefore, on a note of agreement only on two points, namely that the form of government be changed to a federal parliamentary one and that the elections should thenceforth be held upon the basis of direct adult franchise. The President also said that he would be willing to make any other amendments upon which there was unanimity or an agreed decision. It is hardly to be expected that any other decision could, therefore, be reached by the DAC to say nothing of the fact that neither Mr Bhashani nor Mr Bhutto were parties to this agreement and that in any event Shaikh Mujibur Rahman still wanted his Six Points to be incorporated into the Constitution. Indeed among the constitutional amendment proposals which were then received was one sent by Sheikh Mujibur Rahman and, after receiving it, the President is reported to have despaired of a constitutional solution.

39. On the 20th of March, 1969, at a press conference addressed by the then Law Minister the constitutional amendments intended to be made were announced to the public. Indeed we are told that it was intended at this conference also to announce a date somewhere in April when the National Assembly would meet to take these amendments in hand. For some mysterious reasons, however, which we have not been able to discover, even while he was addressing the press conference the Law Minister was instructed on the telephone to withhold this particular announcement.

40. It has been said that the RTC was a failure. It certainly was not an unmitigated success. But we wonder whether, upon a cooler appreciation of the events, the term "failure" can really be attached to the conference. For reasons which we have already stated it would have been optimistic indeed to expect that the RTC would attain complete unanimity. Two important leaders were anyhow outside the negotiations. In these circumstances the two major changes agreed upon could hardly be regarded as an insignificant matter. Indeed it may well be that that was the maximum agreement that could be expected to be reached. Nations do not exist on unanimity and difference of views is an essential part of democracy. The agreement reached was sufficient to start a new chapter.

41. Nevertheless since the law and order situation had deteriorated badly one cannot dispute the wisdom of the then President considering the desirability of calling upon the army to act in aid of the civil power and he accordingly asked General Yahya whether he would be ready to do so. Now it is necessary before we proceed any further to understand clearly what is the meaning of the expression "Martial Law." In itself, Martial Law is really no law at all, but merely a conventional way of stating that the military commander's will is supreme. It has no application, in law, within the country and has meaning only in the event of the military occupation of a country by an alien force. It is not and never has been the legal duty of the army to substitute for the government the supremacy of its own "will" over the people. Its duty on the contrary is to come to the aid of the government itself when called upon to do so in such areas and for such time that it may be required. In the examples of so-called Martial Law imposed in undivided India or in Pakistan before the year 1958 the civil government was not displaced and indeed Martial Law had been ordered by the civil government. The army was doing its duty by assisting the civil government when the latter's ordinary machinery had failed in any particular place and these cases have been regularised either in anticipation or retrospectively by due legislation. What occurred in 1958 was that the government was displaced entirely by Army rule. It was nothing more and nothing less than military rule. Indeed Field Marshal Ayub Khan who headed the administration of the first Martial Law agreed with us that both in 1958 and 1965 what was imposed was military rule.

42. It is a common misconception, particularly in the army, and, we think, developed only after 1958 that Martial Law can always be imposed by a military officer in the area in which he is in command. In other words whenever a military commander, however low ranking, finds that the ordinary government cannot be carried on within the area in his command, he has under some law which has authority superior to the Constitution, both the right and the obligation to impose Martial Law. General Yahya in his evidence was strongly of this view. Successive exposure to Martial Law has blurred even in the minds of non-soldiers, the definition of Martial Law.

The whole question has been examined at great length and authoritatively in the recent celebrated judgement of the Supreme Court in Asma Jilani's case and we venture to quote some passages therefrom:-

"Martial law, in the present times in England, has acquired various senses. In its original sense it is perhaps now only identifiable in the law relating to the enforcement of discipline in the forces at home and abroad. In this sense this branch of Martial Law is now better know as 'military law' and is in time of peace enforced under various statutes, such as the Army Act, the Navy Act and the Air Force Act. It derives its authority from these statues passed by the civil law-making bodies. In international law Martial Law means the powers of a military commander in war time in enemy territory as part of the jus belli. In this sense as the Duke of Wellington once said in the House of Lords it is "neither more nor less than the will of the General who commands the army." (Hansard, Vol. CXV, Col. 880). Can Martial Law in this form be exercised within the country? The position in England today, as mentioned in Halsbury's Laws of England, Vol. 7, Third Edition, page 260, is as follows:-

"The crown may not issue commissions in time of peace to try civilians by martial law; but when a state of actual war, or of insurrection riot, or rebellion amounting to war, exists, the crown and its officers may use the amount of force necessary in the circumstances to restore order, and this use of force is sometimes termed martial law. When once this state of actual war exists the civil courts have no authority to call in question the actions of the military authorities; but it is for the civil courts to decide, if their jurisdiction is involved, whether a state of war exists which justified the application of Martial Law. The powers, such as they are, of the military authorities cease and those of the Civil Courts are resumed ipso facto with the termination of the state of war; and, in the absence of an Act of Indemnity the civil courts may inquire into the legality of anything done during the state of war; even if there is an Act of indemnity couched in the usual terms, malicious acts will not be protected." Under the Constitution of France, however, there is procedure available for a 'declaration of a State of Siege,' under which the authority vested in the civil power, for the maintenance of order and police passes entirely to the army (authorite militaire), in consequence of tumult or insurrection in any part of the country. On the proclamation of such a stage of siege the constitutional guarantees become suspended and the government of the affected area is temporarily placed under the control of the military. "Martial Law" in this sense, namely, the suspension of the ordinary law and the temporary government of a country or a part of it by the military is according to A V Dicey (Vide law of the Constitution, page 267), "utterly unknown to the law of England," for, it has nothing equivalent to the French 'declaration of State of siege.' This does not, however, exclude the possibility of the armed forces being employed, even under the laws of England, for the suppression of riots, insurrection and rebellion, but in this sense, according to Dicey, Martial Law is just "a name for the common law right of the Crown and its servants to real force by force in the case of invasion insurrection, riot or generally of any violent resistance to the law." He considers this right to be essential to the very existence of orderly government "and, as being as such most assuredly recognised in the most ample manner by the law of England." This right has, however, according to him, "no special connection with the existence of an armed force," but pertains to the right of the Crown to put down breaches of peace for which purpose he may call upon any subject, whether civilian or soldier, to assist "as a matter of legal duty." So far as England is concerned, no occasion has arisen to enforce even this type of common law martial law in the country since the civil war of the Seventeenth century, but Martial Law has been enforced in this form during the past century in South Africa, Southern Ireland, Palestine and part of British India. Nevertheless, even in such cases the degree of freedom given to the military to exercise force has varied with the circumstances of each case. The test of interference always has been the necessity of performing the duty of repelling force and restoring order. In exceptional circumstances, the military may in such eventualities also find it necessary to set up Military Tribunals to try civilians and offenders may even be condemned to death but in every case the action taken has to be judged by the test necessity. The Tribunals so set up are neither judicial bodies nor Courts Martial under the Army, Navy or the Air force Acts but are merely bodies set up to advise the Military Commander as to the action he should take.

The English courts also maintain that it is not the proclamation of Martial Law which justifies the use of force but rather the events which have created a situation in which the use of force in this form has become justified. Blackstone in his Commentaries, Vol. 1, page 381, describes this kind of Martial Law "only as temporary excrescences bred out of the distemper of the State."

From the above it is clear that we must distinguish clearly between Martial Law as a machinery for the enforcement of internal order and Martial Law as a system of military rule of conquered or invaded alien territory. Martial Law of the first category is normally brought in by a proclamation issued under the authority of the civil government and it can displace the civil government only where a situation has arisen in which it has become impossible for the civil courts and other civil authorities to function. The imposition of Martial Law does not of its own force require the closing of the civil courts or the abrogation of the authority of the civil government. The maxim inter armes leges silent applies in the municipal field only where a situation has arisen in which it has become impossible for the Courts to function, for, on the other hand, it is an equally well established principle that where the civil courts are sitting and civil authorities are functioning the establishment of Martial Law cannot be justified. The validity of Martial Law is, in this sense, always a judicial questions, for, the Courts have always claimed and have in fact exercised the right to say whether the necessity for the imposition of Martial law in this limited common law sense existed.

From this examination of the authorities I am driven to the conclusion that the Proclamation of Martial Law does not by itself involved the abrogation of the civil law and the functioning of the civil authorities and certainly does not vest the Commander of the Armed forces with the power of abrogating the fundamental law of the country. It would be paradoxical indeed if such a result could flow from the invocation in the aid of a state itself for its own protection from external invasion and internal disorder. If the argument is valid that the proclamation of the Martial Law by itself leads to the complete destruction of the legal order, then the armed forces do not assist the state in suppressing disorder but actually create further disorder, by disrupting the entire legal order of the state. I cannot, therefore, agree with the learned Attorney General that the proclamation of Martial Law by itself must necessarily give the Commander of the armed forces the power to abrogate the Constitution, which he is bound by his oath to defend.

43. Reverting back to the events, General Yahya Khan's reaction to the enquiry of President Ayub Khan seems to us to be an amazing one. According to himself he was of the view that a partial Martial Law could be of no use at all in as much as the persons causing trouble would immediately leave the areas under Martial Law which would gradually have to be extended until the whole country was under Martial Law. In other words, therefore, Martial Law had to be imposed throughout the country. We cannot but read this as meaning a flat refusal to come to the aid of the civil government. Other evidence discloses that the army in so many words declined to take any responsibility unless the government of the country was made over to it. Witnesses have deposed to General Yahya saying that unless he was asked to take over entirely he would pack up and go to Peshawar, leaving the government to manage as it best could. We cannot but express our utter surprise and sense of profound shock that the Commander-in-Chief of the Army, each one of whose officers and men had taken an oath to be faithful to Pakistan and its Constitution should adopt such an attitude. It was the army's foremost duty to come to the aid of the legitimate government; instead it exploited the government's weakness at a time when it was itself willing to erase itself from the political scene by constitutional means in order to meet the wishes of the people who are after all the ultimate political sovereign. It should have been its duty clearly to eschew politics; on the contrary it chose to enter politics in a big way and make itself the sole political power.

44. What then happened between the 20th of March and 25th March, 1969, to necessitate the handing over of the country to a military Commander? The situation was definitely not comparable to the one in 1958. In 1958, for good reasons or ill, Field Marshal Ayub Khan, ousted the Government in power through under the facade of the then President continuing as such in the new regime for less than three weeks. In 1969, apparently at least, a civil government invited the Commander-in-Chief to take over the country. It is interesting to note that in the letter which the Field Marshal wrote to General Yahya Khan on the 25th March, 1969, he asked the latter to perform his constitutional responsibilities. This sentiment was repeated in the Field Marshal's farewell broadcast in which he went on to express the opinion that the security of the country demanded that no impediments be placed in the way of the defence forces and they should be enabled to carry out freely their legal duties. If this passage stood alone it would not be difficult to read it as meaning that the army was required to come to the aid of the civil power. Clearly, however, such an interpretation is entirely untenable in the context of the entire broadcast, which was to the effect that the government was unable any longer to function and spoke also of the decision of the Field Marshal to relinquish simultaneously the office of the President. The reference, therefore, can only be to that notion of supra constitutional duty with which the army was imbued at that time and which General Yahya Khan in his deposition strongly advocated before us as the correct legal position. We questioned him closely upon this matter and he said that he was not a lawyer but that from the beginning of his career in the army he had always been trained to believe that this was a cardinal duty of a soldier, namely the defence of the country. This statement comes from a person who, in a different context, claimed to be an expert in law.

45. As we have seen the Round Table Conference produced as favourable a result as it could, under the circumstances, have been expected to achieve. Not only had a sufficient measures of agreement been reached to begin the process of constitutional amendment but it had been publicly announced that the measures would be carried through in the appropriate legislative fashion. In order to bring to the country respite from internal strife, the President had renounced for himself even the position of constitutional head of a parliamentary form of government. He could and should according to the 1962 Constitution, if he wished to quit the scene immediately, have handed over to the Speaker who would take the necessary steps for the election of a new President. There was, therefore, no reason apparently, why the President should not have gone on to amend the Constitution by means, of course, of the process contemplated by that Constitution itself. What then induced him suddenly to hand over the government of the country to General Yahya as he did on the 25th? The reason, it seems to us, is primarily to be found in the attitude of General Yahya who had made it plain that he would not agree to come to the aid of the civil power. The Field Marshal had ever been contemptuous of the ability of the politicians to govern the country in a democratic fashion with success. That General Yahya's opinion was not very different is shown as much by his conduct after he took power as his evidence before us and he was, in any case, motivated by his own desire to come to power. By this time also what had been whispered for years was being openly alleged, namely that during the Field Marshal's regime he and his family had amassed a vast fortune by abuse of his official position. The Field Marshal's decision to give power to the General could well have been influenced in part by a hesitation to put politicians in power over himself. Credence is given to this view by the public statement of General Yahya after his assumption of power, in reply to a newspaper reporter's question, that he would not proceed against Field Marshal Ayub Khan.