Thursday, May 15, 2025

An interesting panel discussion

We hope that this session was successful in providing a comparative overview, demonstrating that fair military justice systems are not all the same and that the United States at least might consider the approaches of its key allies as it contemplates further revisions to its military justice system.

From this summary of a comparative military justice panel at the 2025 CLE program sponsored by the U.S. Court of Appeals for the Armed Forces. Other materials from the program can be found here.

Tuesday, May 13, 2025

R v Colonel Kearney

On 8 May 2025, a court martial sentenced a retired Canadian colonel to a fine of $3,000.00 and a severe reprimand following a guilty plea to a single charge of "conduct to the prejudice of good order and discipline" contrary to s 129 of the National Defence Act (NDA).  The judgment has not yet been notoriously published, but the proceeding was the subject of brief reporting in the news media, including by two reporters who regularly cover matters of National Defence: Murray Brewster of the CBC ("Retired army colonel fined, reprimanded for insulting British senior officer") and David Pugliese of the Ottawa Citizen ("Canadian officer fined $3,000 for derogatory comment about British general").

Colonel Rob Kearney was a former officer of the regular force who retired in 2012, and then returned to service as a member of the reserve force a few years later, in order to serve in senior advisory positions at National Defence Headquarters.  He was then posted to the Allied Rapid Reaction Corps (ARRC) based out of Innsworth, United Kingdom a few years ago.  At the time, he was serving on a 'Class C' period of service as a reserve force officer. [For our American cousins, this is roughly analogous to 'Active Duty' status for an officer of the Reserves or the National Guard.]

According to a Canadian Forces News Release in April 2024, Colonel Kearney was initially charged on 23 April 2024 with five separate charges, each under s 129 of the NDA, with the dates of the allegations ranging from December 2021 to November 2023.  A complaint was first made in November 2023, and following a military police investigation, charges were laid five months later.  However, by the time that a court martial was convened before military judge, Colonel Nancy Isenor, only a single charge was presented.  Colonel Kearney pled guilty to the single charge.  And, while the judgment has not yet been published, and news reports did not indicate whether this was a joint submission within the framework established under the Supreme Court of Canada judgment in R v Anthony Cook, 2016 SCC 43, it appears that this may have been the case.

Shortly after the charges were laid in April 2024, Colonel Kearney, who had been posted to the United Kingdom, was repatriated back to Canada.  he then retired for a second time.

By virtue of subs 60(2) of the NDA, the Canadian Forces retained jurisdiction to try Colonel Kearney by court martial, even though he had retired prior to his court martial being convened.  Former members of the CF remain liable for prosecution under the Code of Service Discipline for any alleged service offence that they are alleged to have committed while subject to the Code of Service Discipline, provided that the alleged offence fell within the jurisdiction of the Code of Service Discipline at the time that it was purported to have arisen. 

In light of the sentence imposed, pursuant to s 249.47 of the NDA, this will not give rise to a criminal record.

Uganda Parliament to consider UPDF Act amendments

The government of Uganda has introduced the Uganda Peoples' Defence Forces (Amendment) Bill, 2025 in Parliament. The measure is intended to respond, in part, to the recent decision of the Supreme Court in Attorney General v. Kabaziguruka [2025] UGSC 1.

The military justice portions of the bill merit close study. It appears to suffer from at least one of the main defects in prior law: subjecting civilians to trial by court-martial. This is barred by the African Charter on Human and Peoples' Rights and strongly disfavored by global human rights jurisprudence.

The bill would give renewable three-year terms to legally-trained court-martial members, whose rulings on legal issues would be binding in unit and divisional courts-martial, but not in the general court-martial. The bill also makes provision for appellate review in the civilian courts.

If the bill passes as introduced, watch for renewed proceedings in the Supreme Court.

NilePost has this report on the bill.

Monday, May 12, 2025

Head of Royal Navy under investigation

The professional head of the Royal Navy, Adm Sir Ben Key KCB CBE is under investigation for an alleged breach of the Values of the Royal Navy involving an extra-marital affair with a junior, female officer. The allegation is unlikely to be dealt with via a Court Martial, which would have probably made him the most senior naval officer to face a Court Martial since Adm Byng, indeed as First Sea Lord he would be senior to Adm Byng. However, instead Key will be dealt with using Major Administrative Action a form of work place discipline administered by the chain of command. Whilst he will be able to instruct a lawyer to write representations on his behalf he will not be able to have legal representation in any hearing/meeting. 

As a single service policy it is hard to see who would form Key's chain of command. The Secretary of State for Defence is likely to be involved but the decision maker is likely to be Key's predecessor as First Sea Lord and now Chief of the Defence Staff, Adm Sir Tony Radakin KCB ADC. In that case, Key can expect little mercy as Radakin is an enthusiastic supporter of the Unacceptable Sexual Behaviours policy which mandates termination of service for those found on the balance of probabilities to have displayed unacceptable sexual behaviour: a lewd remark addressed to person A which offends person B will suffice. 

Key's routes of appeal are limited. He may lodge a Service Complaint, an internal complaints process described a neither 'efficient, effective or fair' in a recent parliamentary report. If he believes he was discriminated against (unlikely in the circumstances) he could bring a claim in the Employment Tribunal. Otherwise his only avenue would be a judicial review. A complicated and expensive process which would see the former professional head of His Majesty's Navy litigating against His Majesty's Secretary of State for Defence. The prohibitive costs and reputational impact of such an action are well known and no doubt relied upon by those who do not wish due process brought into their internal system. 

For an officer like Key whose pension is secure and who will not be reliant on Service accommodation the implications are limited; an ignominious end to a successful career. For more junior ranks though this process can lead to the loss of their home and hundreds of thousands of pounds of lost pay, resettlement and pension. Major Administrative Action is an important tool for the chain of command but those at the top of the chain are beginning to experience the system from the sharp end. It is to be hoped it will lead to some reform. 

ADDENDUM: Meanwhile the BBC alleges Key's likely replacement as First Sea Lord, Gen Sir Gwyn Jenkins KCB OBE RM, has been complicit in the covering up of war crimes by the SAS. If true (the allegations are hotly denied) it would unquestionably amount to a breach of the Values of the Royal Navy, not to mention Misconduct of Public Office and conspiracy to Pervert the Course of Justice. Meanwhile, the former Chief of the General Staff, the professional head of the British Army, Gen (Rtd) Sir Mark Carleton-Smith KCB CBE ADC faces less serious but related allegations of failing to report evidence of the same war crimes. Carleton-Smith denies the allegations.

Saturday, May 10, 2025

An insightful article: Disservice to the military Florence Nightingale undone by the Supreme Court (LiveLaw.in)

The portal LiveLaw.in has carried an insightful article authored by Ananya Sharma and Roopan Atwal on the recent judgment of the Supreme Court of India granting veteran benefits to officers of the Military Nursing Service, earlier covered by this blog. The same can be accessed here and is reproduced below:

Disservice to the military Florence Nightingale undone by the Supreme Court

Ananya Sharma and Roopan Atwal

 A SNAPSHOT

A Division Bench of the Supreme Court comprising Justice PS Narsimha and Justice Manoj Misra recently paved the way for the first ex-Military Nursing Service (MNS) Short Service Commissioned Officer (SSCO) to be inducted into the Punjab Civil Services under the Ex-Servicemen (ESM) category (Civil Appeal 5235/2025 Irwan Kour Vs Punjab Public Service Commission & Ors decided on 16-04-2025). Captain Gurpreet Kaur, a retired MNS officer took the Punjab Civil Services (PCS) Examination – 2020 under the ESM category, sans the apprehension that an uphill and long legal battle awaited her. It is yet another story that despite women now being an integral part of the mainstream Defence Services, the terminology “Ex-ServiceMAN” has still not been changed into a gender-neutral term, such as “Ex-Servicemember” or “Ex-Service Personnel”, but we will leave that for another day.

Capt Kaur’s candidature for the PCS was rejected by the Punjab Public Service Commission on the ground that being an officer of the MNS, she could not be considered an ESM in terms of some correspondence received from the Kendriya Sainik Board. On the last working day of the then Acting Chief Justice, Justice Ritu Bahri (before she joined as the Chief Justice of the Uttarakhand High Court), a Division Bench of the Punjab and Haryana High Court comprising her and Justice Aman Chaudhary had ruled Capt Kaur to be fully falling within the definition of ESM as per the Punjab Recruitment of Ex-servicemen Rules, 1982 (“State Rules, 1982”). The Bench directed the State of Punjab to appoint her as a PCS officer with notional benefits of service (LPA  636/2022 Gurpreet Kaur Vs Punjab Public Service Commission decided on 03-02-2024).

A private Respondent before the High Court, namely, Ms Irwan Kour, (a retired officer from the Army Medical Corps who had also applied under the ESM category and was appointed as a PCS officer), had impleaded herself as a party before the High Court and challenged the decision through a Special Leave Petition before the Supreme Court on various grounds, including that it had been clarified by the Central Government that the Central Ex-Servicemen Amendment Rules, 2012 (“Central Amended Rules, 2012”) would not cover MNS officers in the definition of ESM, and further, that the directions of the High Court in appointing Capt Kaur would endanger the Appellant’s position as an already serving PCS officer.

THE HISTORY OF MILITARY NURSING SERVICE AND THE UNNECESSARY ARTIFICALLY CREATED CONTROVERSY

The MNS has its origins in 1888. The MNS in the current form was raised as an “Armed Force” of the Union of India as part of the Indian Army vide an Ordinance in the year 1943 and is duly recognized as an integral part of the Armed Forces of India. The members of MNS are appointed by the Central Government with a commissioned rank of the Indian Army. The MNS is the only all-woman branch of the Defence Services in India.

Historically, retired MNS officers were provided ESM benefits under the Central Ex-Servicemen Rules, 1979 which defined “Ex-Servicemen” as those who retired or were released on competition of terms from the “Armed Forces” of the Union of India. The pensioners from the MNS from the Permanent Commission Cadre were treated as ESM and so were the SSCOs of the MNS who were compulsorily released after a minimum 5 years of service. However, over the years, the Central Rules were amended and the term “Armed Forces” was replaced with “Regular Army” (See the Central Ex-Servicemen Amendment Rules, 2012/”Central Amended Rules, 2012”) with the purpose of distinguishing Defence Services (Army, Navy and the Air Force) from other Armed Forces, such as the Central Armed Police Forces (CAPFs), such as the BSF, CRPF etc., which are also officially categorized as “Armed Forces” of the Union of India.

Hyper-technically picking on this change in terminology, the Kendriya Sainik Board, which functions under the Ministry of Defence (MoD) issued letters in 2019 and 2021 stating that the MNS officers are not ESM since the MNS did not fall within the “Regular Army”. This despite the fact that in 2014, the same Kendriya Sainik Board had clarified that MNS would, in fact, fall under the definition of ESM. It was only from 2019 onwards that their stance seemed to switch from the logical to the absurd, just because apparently some MNS officers had applied to be appointed for posts under various Sainik Boards. What was interesting to note in this was that the Kendriya Sainik Board has no standing to comment on statutory rules under the Constitutional Rules of Business and is merely a board looking after various welfare activities under the MoD.

Interestingly, as far as the Central Amended Rules, 2012 were concerned, the matter was thereafter taken up by the Chiefs of Staff Committee which is the apex body of the Defence Services, which agreed with an earlier High-Level Committee on the subject under the MoD, on its findings that the ESM status of MNS officers was “well-established”. The observation of the committee was ultimately approved by the Defence Minister. Despite the approval, the Kendriya Saink Board continued to refuse issuance of ESM cards to MNS Officers.

The worst effect of this was on SSCOs of the MNS who now, after their release from MNS in five or more years without pension, became unemployable for civil government jobs since they were now being released on completion of their contractual service in middle age without any reservations or benefits of their military service and without any age relaxation as is applicable to ESM, thus leading to an uncertain future at a time when familial responsibilities are at peak. Military service, hence, became a disqualification rather than a qualification as compared to their peers who joined other services and organizations, and also male and female officers joining branches of the Army other than the MNS who faced no such disqualification. Not only was this discriminatory and illogical, but also highly exploitative of young women who served in the MNS during the times of their lives only to be discarded and left unemployable, having crossed the prime of their lives and rendered ineligible due to age and other criteria due to time spent in the military.

THE CASE AND THE JUDGMENTS OF THE HIGH COURT AND THE SUPREME COURT

The argument of Capt Kaur before the Courts was that Central Amended Rules, 2012 would not apply to recruitments made under the State of Punjab, as the State Rules of 1982 were enacted by the State in exercise of powers under Article 309 of the Constitution, and the State Rules, 1982 which were substantially different than the Central Amended Rules, 2012, provided for the requirement of a person to have served in the “Military” and the “Armed Forces” to be eligible for ESM status, and not the “Regular Army” which was a term used in the Central Amended Rules, 2012. Capt Kaur had also argued, that in any case, the MNS would also very much fall within the definition of “Regular Army” since the branch was recognized by the Army Act as a part of the Regular Army and also by the Defence Services Regulations.

The High Court and the Supreme Court agreed with such contention and rejected the ground urged by the State of Punjab that the clarifications issued by the Kendriya Sainik Board, an advisory body for re-settlement and welfare of retired personnel, would have any bearing over the Punjab State Rules, 1982.

The Supreme Court finally found Capt Kaur eligible to be appointed in the PCS and also clarified that the Appellant’s (Ms Irwan Kour’s) appointment already effectuated would not be affected by the appointment of Capt Gurpreet Kaur, protecting the interests of both the parties.

More importantly, the Court noted that the restrictive interpretation of rules and insistence on denial of ESM status to retired personnel of the Military Nursing Service (MNS) would demoralize the youth from joining the Defence Forces, knowing that their future would be bleak after their eventual release from military service. Such a practice, especially in Punjab, which contributes 7% to the military despite making up only 2% of the population of the country, would, no doubt, be a discouraging exercise.

THE IRONY

Though the MNS is celebrated as a form of “nari shakti” in ceremonies and parades, the irony in the entire episode is the uncalled-for roadblocks created for MNS officers through the years- not because of systemic discrimination by the government, but due to wanton prejudice based on hyper-technical interpretation of rules and contradictory letters issued by various authorities, which the senior hierarchy, despite its good intentions, has not been able to control or curtail, at times even after assurances and orders issued by the highest political executive. Even in the past, pin-pricks have been initiated which resulted in litigation, which seemed more of personality-oriented ego battles. One such issue was denial of salutations, precedence, star-plates corresponding to their military rank, and ancillary respect to the military rank held by MNS officers by other members of defence services. Despite Regulation 733(b) specifically laying down the inter se precedence, policy letters were issued to deny precedence and status to such officers. The regulation runs as under:

“Women officers serving in the Army Medical Corps and officers in the Military Nursing Service will rank equally with male officers of the same titular rank, e.g., a captain (woman officer) in the Army Medical Corps, will rank equally with a captain in the Artillery or Engineers.”

At one time, the rules provided for compulsory retirement of MNS officers if they got married. Examining this issue, the Supreme Court in Union of India Vs Ex-Lt Selina John (Civil Appeal 1990/2019) decided on 14-02-2024, had observed the following:

“This rule, it is accepted, was applicable to only women nursing officers. Such rule was ex-facie manifestly arbitrary, as terminating employment because the woman has got married is a coarse case of gender discrimination and inequality. Acceptance of such patriarchal rule undermines human dignity, right to non-discrimination and fair treatment. Laws and regulations based on gender-based bias are constitutionally impermissible. Rules making marriage of women employees and their domestic involvement a ground for disentitlement would be unconstitutional.”

Despite the many hurdles in their long path to justice, MNS officers have performed their duty with utmost dedication. In an ideal situation, it was not the MNS officers who should have been fighting for their rights, and a serious thought should have been rendered to resolving their genuine grievances in-house without resort to litigation or adversarial stands in courts. Egotistical stands should have yielded to real camaraderie.

In the crusade against prejudice and gender discrimination, the Constitutional Courts have repeatedly come to the rescue of women and ensured substantive equality in the forces, but more than that, it is the duty of the defence services themselves, and the society at large, to effectively ensure the adherence to the avowed principles our nation stands for.

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Ananya Sharma, a law graduate, is currently working with an American company as an in-house counsel.

Roopan Atwal is a practicing advocate at the Punjab and Haryana High Court.