Time to put the Court Martial on Trial

Chandra CP Nath May 29, 2011
”Theres a compelling reason why the defense establishment which includes politicians, bureaucrats and military bureaucrats needs to stop the tide of corruption”, asserts Tehelka in its issue on corruption in Defense Forces in India. It goes further: ”The COI found them guilty and it recommended that (Gen) Prakash be sacked. However, (Gen) Kapoor stepped in and recommended that only administrative action should be taken against him. This caused so much commotion that Antony had to write a letter to the army chief asking for a court martial.” Where does the cacophony of the media leave Military Justice system is a question I first raise in this article. In addition, the thesis developed for this article is that the current Military Justice System, as it exists in India, is weighed against the accused and is violative of the human rights accorded to him for a fair trial under the Human Rights Law accepted the world over. The Indian system will be examined with close reference to UK and USA as these originated from the single common source of Roman laws. I am not arguing that the real law breakers should be left to escape. Just the contrary. Did Gen Kapoor attempt to give his Principal Staff Officer an escape route by not bringing charges against him? If yes, it may be violative of the military criminal justice (obstruction of justice: an act with the intent to influence, impede, or otherwise obstruct the due administration of justice) if he has done the same for reasons he can not justify. Was it an error of judgment? To come under pressure from RM to order a court martial when his sound military professional judgment concluded otherwise, (and he as the com1 manding officer is the sole authority to decide this) may be violative of a covenant duty as a commanding officer if he allowed himself to be adversely influenced by the RM in performing a strictly ”judicial function of the commander”. To come under pressure because of media onslaught and to ask the Chief to order a court martial may itself be violation of law by the RM because he is interfering with a strictly judicial powers of the Chief and RM by this act may have violated his oath of office. Should the error of judgment or act of obstructing the due administration of justice by the Chief and the action of the RM in attempting to influence a strictly judicial function of the Chief be ignored while the institution is more than enthusiastic to punish Lt Gen P K Rath for an error of judgment in a purely administrative function or for that matter Lt Gen Avadesh Prakash for attempting to influence a purely administrative function of a field commander, all because they appeared as ”the accused” ? Just think about it! A serious critical analysis will expose more skeletons in the cupboard than we would like to see. It is an accepted dictum that to perform a superior judicial function, security of tenure is mandatory. The inquiry about security of tenure may draw a blank for the Chief! This case, in the very least, establishes the fact that the the Chief could succumb to pressures from higher ups not in the command chain (because President of India as the Supreme Commander of the Armed Forces is in the chain of command and not the RM). And, why so? Because, unlike, in the case of civilian bureaucrats and even ordinary employees of the

government, any one in uniform, or for that matter, even the Chief, could be dismissed with out assigning any reason as protection of article 311 of the constitution of India is deliberately barred to the men in uniform! Can a Chief with such tremendous judicial powers over his command, as detailed else where below, function independently if he has no security of tenure? A Naval Chief was dismissed by the RM and there was not even a whimper! How sad? Is the military justice system as it exists in India to day violative of Human Rights as defined by the Human Rights commission? In a case in the European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (”the Convention”) ruled that court martial as followed in the UK was violative of human rights. These were successfully raised against the United Kingdoms Army Act in 1997 in the case of Findlay v. the United Kingdom before the European Court of Human Rights. The case of Findlay v. UK, decided unanimously by the European Court of Human Rights on February 25, 1997, had a major effect on courts-martial in all the countries that derived its military laws from the English laws. The resulting changes and reforms to the UKs system through the Armed Forces Act 1996 and 2006 prove the point that it is just a matter of time that some one raises human rights violation of all courts martial as practiced in India. While UK had revised their military justice system substantially even before United Kingdoms Army Act in 1997, our current Army Act is largely same as what the colonial power left for us while leaving the country in 1947. This is definitely a matter of shame. In a scathing critical remark, US Supreme court stated in O’Callahan v. Parker: [T]he catch all Article 134, conduct prejudicial to good order and military discipline, punishes as a crime ’all disorders and neglects to the prejudice of good order and discipline in the armed forces.’ Does this satisfy the standards of vagueness as developed by the civil courts? It is not enough to say that a court-martial may be reversed 2

on appeal. One of the benefits of a civilian trial is that the trap of Article 134 may be avoided by a declaratory judgment proceeding or otherwise. A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive justice. As recently stated by eminent jurists: None of the travesties of justice perpetrated under the Uniform Code of Military Justice (UCMJ) is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.- Glasser, Justice and Captain Levy, 12 Columbia Forum. US Supreme Court in O’Callahan v. Parker land mark ruling (while may not be authoritative, is very persuasive for us in India as far as the legal principles are concerned) the ruling held with regard to who can and can not be court martialed. For accuracy, I quote verbatim: 1. held that there was not the remotest connection between O’Callahan’s military duty and the crime in question, and that as a consequence a general court-martial was without jurisdiction to try him, ”but rather [he] was entitled to trial by the civilian courts.” 2. held that court-martial jurisdiction cannot be extended to reach any person not a member of the Armed Forces at the times of both the offense and the trial. Thus, discharged/retired soldiers cannot be court martialed for offenses committed while in service. 3. held that the fact that courts-martial have no jurisdiction over non soldiers, whatever their offense, does not necessarily imply that they have unlimited jurisdiction over soldiers, regardless of the nature of the offenses charged. 4. held that liability to trial by court-martial is a question of ”status” - ”whether the accused in

the court-martial proceeding is a person who can be regarded as falling within the term ‘land and naval Forces.’ But that is merely the beginning of the inquiry, not its end. ”Status” is necessary for jurisdiction; but it does not follow that ascertainment of ”status” completes the inquiry, regardless of the nature, time, and place of the offense. 5. The O’Callahan Court’s historical foundation for its holding rests on the view that ”both in England prior to the American Revolution and in our own national history, military trial of soldiers committing civilian offenses has been viewed with suspicion. 6. The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes. 7. The Military tribunals have no expertise whatever to bring to bear on the determination whether a common everyday practice carried on by civilians become service connected when carried on by servicemen. Mr Justice Douglas alludes to ”so called Military Justice”, and ”travesties of justice perpetrated” and the circumstances that ”courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.” Indian Military Justice system is an anachronism as it is totally derived from what was promulgated for a colonial army for the expansion of colonies by the colonial power and not suited for the citizen soldier of a democracy which should believe in liberal values of human rights and protection of the same from usurpation by the State. UK has totally overhauled their system when it was declared to be against Human Rights. USA, Australia, Canada and New Zealand have also revised their laws pertaining to military justice system to come to terms with the 3

requirements of a modern society. If the Indian Parliament is convinced that the military justice system is bereft of the essence of justice, drastic reforms may, hopefully, be forthcoming. Do we realize what justice is? Lt General P K Rath was punished severely for giving security clearance for a school in the military area. If he were to be punished for this, every school in the military area in India also has some one who had given security clearance for it. They also ought to be punished. Issues and principles in law ought not to change colour like a chameleon. Lt General Rath, just because he was in uniform could be punished for an error of judgment in a purely administrative function. How many such errors of judgment must have happened with the government and the bureaucracy in India that are not punished and not even charged with an offense? A Lt General was found to have tampered with the war diary during Kargil operations because he wanted to obfuscate the contribution of a Brigadier under him during the operations. This is not an error of judgment but a deliberate offense to tamper with the war diary of the nation. This is a criminal offense under IPC. This is a serious military offense under the new UK Armed Forces Act.( A person subject to service law commits an offense if (a) he makes an official record, knowing that it is false in a material respect;and (b) he knows or has reasonable cause to believe that the record is official.) He was not even charged with an offense leave alone punished because no media pressure forced the Chief to order a court martial. It would definitely seem to be an offense fit for a court martial in a service connected offense in the field of military operations in the face of the enemy” compared to an error of judgment a in purely administrative function committed by Lt General PK Rath. The only difference was, one was placed as the accused in front of a court martial and the other was not. So, every thing revolves around who is placed as the accused in front of a court martial. What do you call this, military justice ? The point that I am driving at is that the power to order or not to order a court martial is the most crucial command duty, and if that alone determines who gets punished and who does not, depending on the whims of the commander, that makes the military

justice system unjust and violative of human rights. A system based purely on the pivotal executive power alone can not pass the muster of human rights by any stretch of logic or imagination. Rule of Law: No individual is interfered with or punished unless a law is broken. There are no discretionary or arbitrary arrests, rulings or actions by the ruling power (the executive). The law applies to every individual and in the same way. All officials are under the same responsibility as any other citizen for every act they do without legal justification. No one is given any concession under the law or in the courts for their rank, position or condition. A convening officer is the most crucial in the system. He assumes full responsibility for every case to be tried by court martial. He orders the CoI. He selects the officer(s) to conduct the CoI, he is empowered to accept or reject the CoI findings, he decides upon the nature and detail of the charges to be brought and the type of court martial required, and is responsible for convening the court martial. The convening officer would draw up a convening order, which would specify, inter alia, the date, place and time of the trial, the name of the president and the details of the other members, all of whom he could appoint. He orders the Judge Advocate General’s office to appoint Judge Advocate and failing such appointment, he could appoint one. He also appoints (or orders a commanding officer) to appoint a prosecuting officer and a defending officer. The convening officer is responsible for sending an abstract of the evidence to the prosecuting officer and to the judge advocate, and could indicate the passages which might be inadmissible. He procures the attendance at trial of all witnesses to be called for the prosecution. He also ensures that the accused had a proper opportunity to prepare his defense, legal representation if required and the opportunity to contact the defense witnesses, and was responsible for ordering the attendance at the hearing of all witnesses ”reasonably requested” by the defense. The convening officer could dissolve the court martial either before or during the trial, when required in the interests of the adminis4

tration of justice and he has sole authority to decide on this. He could comment on the ”proceedings of a court martial which requires confirmation”. The convening officer usually acts as confirming officer also. While he may seek JAG advise, he is not bound by that. A court martial’s findings are not effective until confirmed by a ”confirming officer”. Prior to confirmation, the confirming officer used to seek the advice of the Judge Advocate General’s Office, where a judge advocate different from the one who acted at the hearing would be appointed. The confirming officer could withhold confirmation or substitute, postpone or remit in whole or in part any sentence. Once the sentence is confirmed, the defendant could petition the ”reviewing authorities”. The reviewing authorities could seek the advice of the Judge Advocate General’s Office. He has the power to quash a finding and to exercise the same powers as the confirming officer in relation to substituting, remitting or commuting the sentence. Neither the fact that advice had been received from the Judge Advocate General’s Office nor the nature of that advice need be disclosed. The position of Judge Advocate General is very intriguing. He is neither a judge nor an advocate nor a General in the strictest sense of the word. Judge advocates are appointed to the Court Martial by the Judge Advocate General’s Office. He is responsible for advising the confirming and reviewing authorities following a court martial. Judge Advocates of the court martial are not members of the Court. He advises them on law and procedure arising during the hearing and the court had to accept this advice unless there were weighty reasons for not doing so. In addition, in conjunction with the president, he is under a duty to ensure that the accused did not suffer any disadvantage during the hearing. For example, if the latter pleaded guilty, the judge advocate has to ensure that he or she fully understood the implications of the plea and admitted all the elements of the charge. At the close of the hearing, the judge advocate would sum up the relevant law and evidence. It did not require much deliberation for the European Court to pronounce that the court martial was not an ”independent and impartial tribunal”, that it did not give him a ”public hearing” and that it was

not a tribunal ”established by law”. The members of the court martial were appointed ad hoc, that the judge advocate’s advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the court-martial, the confirming and reviewing officers, and that the post-hearing reviews were essentially administrative in nature and conducted in private. European Human Rights Court (in Findlay v. UK in 1997) expressed the unanimous opinion that there had been a violation of Article 6 para 1 of the Convention (art. 6-1). The court martial was not an ”independent and impartial tribunal” as required by Article 6 para 1(art. 6-1), because all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority. The lack of legal qualification or experience in the officers making the decisions either at the court martial or review stages made it impossible for them to act in an independent or impartial manner. Any accused in a court martial in India could claim that his trial by court martial failed to meet the requirements of Article 6 para 1 of the Human Rights Convention (art. 6-1). The reason the Military justice system is under constant attack from every quarter in the western society and there is constant attempt to improve it or at least doubt its ability to provide justice is a very positive thing. The reason why it is not under attack in India is tragic because it smacks of certain insensitivity to the fairness of the system to one who has volunteered and his willingness, if necessary to make the supreme sacrifice in call of duty for the nation. Even the courts in India including the Supreme court have maintained a hands off stand much to the detriment of the consumer of the military justice system, i.e. the man in uniform. Are military justice systems superior as claimed by a retired Indian General recently in the Indian media? No one can dispute that it is fast and severe but can one be sure it is fair? This is typical of the ”affirmative deception” practiced consciously or unconsciously by the military to reinforce the official perspective. In the military system, the CO/Commander is the police (law enforcer), the investigator, the prosecutor, the judge and the jury and 5

the jailer and the executioner. Each duty has conflicts of interest and violates the fundamental principles of separation of duties. To hail this system with a 95+ percentage of conviction as the sole criteria for the goodness of the system may not exactly be logical to say the least. Obviously the reader should be aware of the origins of Indian military law, just as the American military law, and particularly the fact that it began as a copy of the British system, which itself was a copy of the early Roman military law. ”In 17th century England the practice of court-martialing soldiers in peacetime evoked strong protests from Parliament. Lord Chief Justice Hale wrote that trial by military courts may not be permitted in time of peace, when the King’s Courts are open for all Persons to receive Justice according to the Laws of the Land.” Hale commented that military justice is not a true system of law at all, but is ”something indulged, rather than allowed as a law” because of the need for order and discipline in the army. Sir William Blackstone agreed Justice Douglas of US Supreme Court, speaking for the majority in O’Callahan v. Parker, noted: ”It was, therefore, the rule in Britain at the time of the American Revolution that a soldier could not be tried by court-martial for a civilian offense committed in Britain; instead military officers were required to use their energies and office to insure that the accused soldier would be tried before a civil court.” Do you require great legal acumen to contrast this with what is happening in India to day? For an offense committed in Delhi of influencing a purely administrative decision making of some other officer far removed in the hierarchy, (a thing that must be happening million times every day in the corridors of power in Delhi and state capitals), so many Generals

are transported to Leimakhong in Manipur from the rest of India including the capital New Delhi (where all law courts are open and functioning) and a GCM will be conducted and a sentence will be pronounced, in all probability, for the offense under the ”Devils Article” (Section 63 of Army Act) against a Lt General with 30+ years of distinguished service! Remember that he has been recalled from retirement for this legal process! After protracted appeals, in all probability, it all will be set aside. If the brilliant jurist of 17th century, Lord Chief Justice Hale’s ruling were to be followed as given above, a lot of tax payer money and time of General officers of the military could have been saved, not to talk of the tremendous hurt felt by the accused for the injustice imposed by the military. And the motivation of the Army seems to be just to claim: ”We punish our accused how ever high they may be, swiftly, sternly and fairly (sic), all in the name of military discipline.” Real discipline is promoted when the system is perceived as fair by the accused and not otherwise. To consider the military court martial as some sort of tsunami that sweeps your life unpredictably during the course of the Army career (and against which any amount of care and due diligence are useless and hence accept the same as the quirk of fate) is NOT the right way to provide balanced justice to our distinguished servicemen. Legislators and jurists can make bad laws. Society changes and the laws lag behind. This is nothing new. So, great jurists must be concerned not just with what the law is, but, most importantly, with what it might or should become. In the long run, the patient’s health will be more improved by proper diagnosis and treatment, than by either a refusal to admit the illness, or a desire for the patient’s demise as written by Charles M Schiesser and Daniel H. Benson in their milestone article titled ”Modern Military Justice”(Catholic University Law Review). The recent spate of widely publicized trials by court-martial of high ranking Generals have hopefully focused national attention on military justice. Some observers have concluded that it is no more than some ”drumhead justice” and 6

that military justice is to justice as military music is to music, writes a distinguished jurist. There is a compelling reason to put the Court Martial on trial before we put many more generals on court martial for what sometimes is called ”the Devil’s Article”(Army Act Section 63) that authorizes punishment of military personnel on grounds that are less specific as to the particulars of the offense and as to the punishment, compared to most crimes in modern West European law. No wonder, to be courtmartialed in the Army lingo mean to be convicted! As one US ex-Navy lawyer recalls: The general attitude seemed to be that a man was going before a court-martial to receive a sentence rather than a trial. Unfairness is the biggest risk of the military justice system as it exists to day and it does not meet the minimum standards of human rights as defined by the Human Rights Commission. You be the judge. **************************

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