Friday, March 27, 2015

Self-defeating plea by the Army and the Ministry of Defence in the Supreme Court of India

Cross posting this from my blog.

There is something very unique about the military community in India, and that is, axing their own rights and then celebrating it, realizing quite late as to what has hit them!

This short-sighted approach has cost us a lot in the past. But then would we ever learn? Of course not!

Which organization would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

Read on!

This post is again about the recent decision of the Supreme Court on an appeal filed by the Ministry of Defence on the jurisdiction of High Courts to entertain writ petitions against orders passed by the Armed Forces Tribunal.

Some of the members of the military community, thankfully in minority now, were trying to sell the idea of a direct appeal to the Supreme Court arising out of orders from the Armed Forces Tribunal, on the plank of it leading to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all due to the curtailment of the jurisdiction of High Courts. This is so since there is no vested right of appeal before the Supreme Court unless there is a ‘point of law of general public importance’ involved in the case. So effectively, as per the current system after the ibid decision, High Courts cannot interfere and the Supreme Court cannot be approached except in exceptional cases involving ‘public importance’. Moreover, there is no appeal at all provided, even to the Supreme Court, for interim orders passed by the AFT if either of the parties is dissatisfied. Besides that, even if the appeal to the Supreme Court had hypothetically existed as a matter of right, defence personnel or veterans or widows or their families cannot even dream of approaching the Supreme Court for their cases, making the entire concept of justice redundant for them, to say the least.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum- a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families. And this absence of judicial remedy was being celebrated by some as ‘quicker justice’.

Now comes the shocker. One of the pleas taken by the Ministry of Defence (and also in all probability, the Army) before the Supreme Court in this case was that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy of a writ petition stands eliminated for the defence community.

This ground professed by the system therefore seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country. Have you ever heard of any organization placing before the Supreme Court a prayer to curtail its own rights? Well, now you have.

I find this plea detestable on multiple grounds:

Firstly, Article 33 purely deals with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts, that is, the High Courts and the Supreme Court.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police, have the rights of those organisations been abrogated or restricted in this regard? Have those organisations or will those organisations approach the Supreme Court with such inane pleas? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot! Does this call for celebration?

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 has no applicability over them. And what would happen to Article 39A which entails equal opportunity to justice?

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court or elsewhere that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land. Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military?

Mark my words, since independence this has been the biggest hit to the rights of the protectors of our frontiers, and it does not seem that most of us have realized it.

Yes, gullible. And sad. 

Military courts in Pakistan: Reuters investigative report

Reuters is running this informative piece about Pakistan's military courts. Excerpt:
Critics say the new rules cede too much ground to the military, which towers over Pakistani politics despite the first ever handover of power from one civilian government to another two years ago. 
A Reuters investigation of legal documents provided by lawyers and families of those tried under existing military courts also highlights concerns over how fair and accountable the new courts will be. 
Some convictions would have been thrown out by civilian courts, according to lawyers involved. Several defendants said they were denied access to legal representation in breach of military law. Some said they were tortured in custody. 
The military can, and sometimes does, dissolve and reprimand courts that reach verdicts they disagree with, then order repeated retrials, according to court documents and former military officials. 
"This happens often. The military is command-oriented, right from arrest until execution," said former military judge Inam ul-Rahiem.

He said he was forced into early retirement for delivering judgments the top brass disliked. He is now a defense lawyer in high-profile military cases.
Pakistan is in the process of adding new military courts to try civilians under the recently-enacted 21st Amendment to the Constitution, the validity of which is the subject of a host of Constitutional Petitions in the Supreme Court. 

Thursday, March 26, 2015

Military justice and police

Who is subject to court-martial jurisdiction? It's supposed to be only military personnel, but there are some places where police or gendarmes also fall under military jurisdiction. Somaliland is one, as witness this article describing the death sentence handed out to a police officer. Another perpetrator in the murder of a prominent businessman received a 10-year term.

Wednesday, March 25, 2015

Thai military courts: might the wind be shifting?

Despite the Thai government's defense of its use of military courts to try civilians for security and lèse majesté cases, this article from the Phuket Gazette suggests, at the very end, that the wind might be shifting:
Deputy Prime Minister Wisanu Krea-ngam said he met yesterday with officers from the Judge Advocate-General's Department to explore the possibility of transferring civilians from military courts to ordinary courts.

Tuesday, March 24, 2015

No need to reform Thai military courts, reform agency official says


The Nation reports from Thailand:
Another NRC [National Reform Council] member, Udom Fuangfoong, who is chairman of a subcommittee on court reform, urged that his subcommittee suggest no reform for military courts. Because these courts merely scrutinised wrongdoing by soldiers, the Constitution Drafting Committee should not apply the same standards of the Courts of Justice and the Administrative Courts with the military courts, he said. [Emphasis added.]
But see http://www.reuters.com/article/2015/03/20/us-thailand-lesemajeste-idUSKBN0MG0E820150320 (67-year-old Thai civilian sentenced to prison by military court for anti-monarchy graffiti).