Wednesday, February 19, 2020

Not competent for court-martial

An interesting situation for the Marines, where a recruit assaulted a staff sergeant in boot camp, and the Marines don’t know how to dispose the case. The recruit was found not competent to stand trial. The government has confined him for two years without charges for misconduct that, if he were convicted after trial, wouldn’t likely result in jail for that amount of time.

It appears the recruit was mentally unwell before entering the service yet managed to enlist. Under Rule for Court-Martial (R.C.M.) 909, no person may be brought to court-martial if they are suffering a mental disease or defect that renders them unable to understand the proceedings against them or to cooperate intelligently in their defense.

According to R.C.M. 909, servicemembers not found competent to stand trial are to be hospitalized pursuant to 18 U.S.C. § 4241. The recruit is currently held in a federal prison hospital in Missouri, and the Marines are unsure whether to attempt an administrative separation, as it appears the recruit will not be competent to stand trial anytime soon.

An important ruling in Jamaica

Two years ago we reported on a strange situation in Jamaica, where members of the Defence Force were given immunity from civilian murder prosecution under questionable circumstances. Yesterday, the island state's Constitutional Court released a 2-1 decision setting aside certificates of good faith that had been suspiciously issued years after the events at issue. According to this article in The Observer:
Supreme Court Judge Justice Leighton Pusey, in handing down the ruling on behalf of a panel of three judges yesterday, declared that the “criminal proceeding should be restored to the trial list”.

The matter had screeched to a halt in April 2018 after the court was provided “with good faith certificates purporting to grant immunity from prosecution to each of the defendants”. Each certificate was, on its face, signed by then Minister of National Security Peter Bunting on February 22, 2016, pursuant to regulation 45 (3) of the Emergency Powers Regulations, 2010. The regulations were, in turn, made under section 3 of the Emergency Powers Act.

Each good faith certificate stated that the actions of the JDF personnel on May 27, 2010, between the hours of 12:00 am and 12:00 pm, at 18 Kirkland Close, Red Hills, St Andrew, which may have contributed to or cause the death of Keith Clarke, were done in good faith in the exercise of functions as a members of the security forces for public safety, the restoration of order, the preservation of the peace, and in the public interest.

According to the certificates, the said actions were undertaken by the named member of the security forces during the existence of the emergency period declared by the governor general on May 23, 2010.

When the issue of the validity of the good faith certificates was raised in 2018 the court made an order staying the criminal proceedings for three months to enable the parties to apply to the Full Court for a determination of the question of the validity of the good faith certificates.

Yesterday, Justice Pusey, in the 55-page judgement, expressed discomfort with those very certificates.
 We will provide a link to the opinions in the case when they become available.

Tuesday, February 18, 2020

Call for the abolition of "military justice" in Spain

The Catalan separatist party, Esquerra Republicana de Cataluña (ERC) last week presented a proposal to the House of Deputies in Congress that has generated debate within the Spanish Army.  The ERC is seeking the reform of two laws concerning the military: the scope and organization of military jurisdiction and the military penal code.

A female corporal who was interviewed said that military justice should be abolished because it only sentences a superior officer to two years, so that they won't be expelled from the Army, whereas the subordinates get a direct expulsion.  The ERC says the priority should be to end "impunity for harassment, abuses and sexual aggression against women in the Armed Forces" as well as "restricting and eliminating military justice."  They point out that Germany eliminated military justice in 1949, France in 1982, and then Holland, Belgium and Norway followed suit.  The female corporal added that "we are a hundred years behind Europe."

Edmundo Bal, a Deputy and spokesman for Citizens in the Congress, expressed his opinion that the law should be amended but not abolished.  Military jurisdiction carries out "magnificent work" and takes decisions like any other court, and despite its very "particular" composition it deals with "complex" legislation in a "very specific" way.

Monday, February 17, 2020

"Catfishing" -- who knew?

The New York Times's David Halbfinger reports here on yet another aspect of personal tech and military service. IDF soldiers "are barred from taking their phones with them into combat or wherever classified information is discussed, and are prohibited from posting photos of themselves in uniform. But the rules are difficult to enforce."

Women in the Indian armed forces: no more temping?

The Supreme Court of India has ruled that women officers should be allowed permanent commission in the Army. The court ruled on 17 February 2020 in Secretary, Ministry of Defence v. Babita Puniya & Ors. that Short Service Commissioned (SSC) women officers in the Indian Army are entitled to permanent commission (PC) and they have to be considered irrespective of their service length. The policy of the Centre in this regard to restrict PC to SSC women officers with less than 14 years of service was held to violate the right to equality. A bench of justices DY Chandrachud and Ajay Rastogi also held that there cannot be an absolute bar on women being considered for command appointments.

The judgement was delivered on a petition by the Ministry of Defence challenging a 2010 judgement of the Delhi High Court (Babita Puniya v. Secretary, Ministry of Defence and another nine cases decided on 12 March 2010), which had ruled that SSC women officers (SSCWO) in Army and Air Force should be granted PC at par with male short service commissioned officers.

The Central Government had issued notification in this regard in February 2019 granting permanent commission to short service commissioned women officers of the Army. However, under this proposal, only SSC women with up to 14 years of service were to be considered for PC. Women with more than 14 years of service would be permitted to serve up to 20 years without consideration for PC and then released subject to pension benefits and women above 20 years of service would be released with pension benefits immediately upon the completion of the case in Supreme Court.

The court observed that Centre’s policy of 2019 in allowing SSC women officers’ PC in 10 streams was in furtherance of the mandate of Constitution. The Court also noted that despite its own policy of 2019, the Centre had submitted a note to the court which perpetuates gender stereotypes on the grounds of national security, discrimination against males, non-trainable, exigencies of service, battle scenario, physical capabilities, composition of rank and file, environmental and psychological realities, capture by enemies, employment of Women Officers, infrastructure, different physical standards, exposures, retrospective implementation. In Courts opinion (para 56), “Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate. Women officers of the Indian Army have brought laurels to the force.” Listing out some achievements of women in Army, the Supreme Court held that casting aspersions on ability of women and their role and achievements in Army is an insult not only to women but also to Indian Army.

The Court issued the following directions: (i) The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following: (a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; (b) The option shall be granted to all women presently in service as SSC officers; (c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC; (e) The expression “in various staff appointments only” and “on staff appointments only” shall not be enforced; (f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and (g) At the stage of opting for the grant of PC, all the choices for specialization shall be available to women officers on the same terms as for the male SSC officers. Further, Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts. SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits.