CRIME AND PUNISHMENT: Are Military Justice Systems really superior as claimed by the General?

A Critique
Chandra Nath February 26, 2011
This has reference to a recently published article by Lt Gen Vijay Oberoi (Retd) in these columns. The general makes a compelling case for accountability in all walks of life and quick and responsive justice system. Another very important point the General drives home is the civil society (actually government i.e executive branch of government) tries to protect the offender and even goes to shield him by parking him in places where the long (?) arms of the law cannot reach them. Having stated that in praise of the article, on deeper analysis, the article is problematic in many respects. Where the problems arise is when he advances his case bordering on the following (along with critique): 1. Society is divided into Army (Military actually) and civil: It is too simplistic conception of a military mind to think about larger society into two simple compartments- military and civil. Military is only a very small segment of the society specifically organised to defend the country from external enemies. Standing army is a bane of society and the part of the society has to be denied civil liberties to carry out this function.Having a standing army , apart from denying the civil liberties to part of the civil society, also has the risk of usurping power and hence has to be kept under check. It is exactly for this reason that many countries had extreme suspicion of standing military and even toyed with the idea of common citizen forming militias. Even USA is included in the countries that toyed with this concept of militias. 2. Military justice system is fast, severe and fair 1 in bringing to book all range of offences (very minor to very grave): No one can dispute that it is fast and severe but can one be sure it is fair? Unfairness is the biggest risk of the military justice system. 3. Military justice system is superior in every respect and then why not have the same swiftness, fairness and sternness for the civil too? Why not the nation switches to a military justice system: This is a very dangerous argument bordering on the ridiculous. Military justice system is tailored for a purpose by compromising on the ”fairness” part of it and extending this to the whole society is nothing short of ridiculous. 4. The military has the reputation of punishing any and all crimes that are found out or reported. It may be a lowly misdemeanour like filching something or a grave crime like murder, assault, espionage and the like, but punishment follows swiftly and inevitably.: Too tall a claim! 5. Without fast track punishment, command will become ineffective (The reason is simple. The military would become ineffective and instead of being a disciplined force, it will turn into a rabble. Why does this not happen in our civil society?): It is this fundamental nature of military justice system that makes it a tool of the commander to maintain discipline. Once the commander made the decision to prosecute, then all the effort is concentrated on punishing the individual accused of the offence. This is exactly the problem of the military justice system. Its

appreciation of the goals of a civil/criminal justice bureaucrats. Other damental goal is not to advance the agenda of than these ”few misguided”. delegate some powers of trial and military justice system. the CO to lay charges can lay a charge. then no stones are left unturned to tions to be conducted. but always play down and seek justifi.” of the society” to follow the military justice system. are the rest of us all the executive. cause investigaprosecute. judiciary. A charge or formal accusavested interests who are practitioners of the well tion alleging a service offence by a person subject known Indian crab syndrome -pull down the best to the AA is laid when it is put in writing on a to their own gutter level!: This is too devious charge signed by an officer authorized by a CO to and paranoid view to be dismissed with no furlay charges. Why 2 . try most milibe the truth. only an officer authorized by ther comment.The media is after a hot and wholly to advance the commander’s agenda. the The article almost claims how great our military commanding officer can in practice influence the justice system is and challenging the the ”other half decision to charge and the charges that are laid. Hence. They are as much after the goal of a civil judicial system. they grab people under the command. This is not peculiar to punishment to junior officers. The author does not appreciate the fact that the mili6.society! To make the rest of the society to adopt that fences. The third category is the army. The CO has both tempts to save favourites at every level do not disciplinary powers and powers like those availexist? ”Where no crime goes unpunished” is far able to a judge. dismiss any charge of any punish the accused as heavily as possible could disciplinary or criminal offence. When day in and day out. They have nothing inimical in their stance vance the command function. the legislathe executive function. to advance the government and the executive. ”The best to save his MS in the highly visible Sukhna commanding officer (CO) is extremely important scam? Is the General suggesting that such atin the military justice system. Didn’t the COAS try his tary justice system may lie in this domain. In fact the executive inture and the judiciary (the three wings of the cluding the PM and the President are also not government) Who are the ”few misguided army above law but subject to the laws and the funpersonnel” and who is misguiding them. there is a concerted sufficient to give to the CO disciplinary jurisdiceffort to show the army in a poor light by those tion over the person. media barons and track system is not only unbalanced but lacks an cations for powerful individuals like politicians. and apply for the India but to all military justice systems! convening of courts martial. This is not exactly against the military. It is designed to adit. where no crime ecute? What has happened to those offenders? goes unpunished and where promptness and jusThe decision to prosecute is purely a command tice prevails: This is a very tall claim and todecision and many of the problems of the militally unsubstantiated. These include the power to isfrom the truth! Once the commander decides to sue arrest and search warrants. you adadvances the purpose of the effectiveness of the vocate that military is superior and when they commanders in first setting an example for the find a juicy story to explode this myth. That exactly is the problem of the tary personnel. It is not for advancing the executive agenda corporate honchos: This is a very warped view unlike the military justice which is essentially and about the media. Many in the army have often speculated that beor other element under the command of a CO is hind such banner headlines. The mere presence of an accused person on a base or with a unit 8. Are we aware of all the cases in lilly white and model members of the society? which the commander has decided NOT to pros7.tary justice system is an exception and not a norm for ever a few misguided army personnel commit of. by authorizing subordinates to lay charges.However. police.fundamental purpose is not fairness but how it juicy story. The media comes down hammer and tongs when.

of greater practical importance than many people believe. I think. the author is totally ignorant of the whole world of literature on the short comings of the military justice system. Society accepts. If military justice system is all so great. the investigator. To extend the risks of system or a system bordering on that for the rest of the country is not only ill conceived but ridiculous. Each duty has conflicts of interest and violates the fundamental principles of separation of duties. they enable their perpetrators to hold the comfortable opinion on every subject in turn. I am reminded of Bertrand Russell’s saying I carry in my signature: Logical errors are.or logic! tary justice system is superior to civil courts. at least – the unique operational demands of the military. albeit reluctantly. why the ************************** uproar? The author has totally a warped view of the military justice system and it is so totally jaundice eyed that his views are at variance with the view of the world renounced judicial minds. In essence. the arguments of the author falls apart into disjointed pieces that can3 . a flawed and perhaps unfair system for a very minuscule section of the society (and thank GOD it is only a very minuscule section of the society!) more as a compromise for purpose of a well disciplined and effective military than for superior and ideal reasons! If you think of military justice system as this fundamental compromise the society has made. the CO/Commander is the police(law enforcer). and the jury and the executioner or the jailer.was there uproar in the US courts against trial of not be put together with any amount of persuasion Guantnamo prisoners under military courts? If mili. the judge. the prosecutor. the jury. In conclusion.To hail this as the most fair system is a feat capable only in the dark precincts of a military mind where the light of wisdom of theory of jurisprudence has never entered! Military commanders who have serious limitations in judging the complex world of jurisprudence should refrain from advocating things they have hardly any understanding. the military justice system complements the civilian justice system to accommodate – in theory. why there is constant cry for reform in all countries where they value the protection of the rights of the individual? Obviously. in the military system. or the appointer of the judge.

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