Monday, June 25, 2018

Why does India need its own Farr and Flipper to undo miscarriage of military justice

(Note: This piece was posted today at Medium and is a bit longer than usual)

Not many in India would have heard about a young British soldier called Private Harry Farr. Not many would also have heard about the ‘shot at dawn’ memorial at Staffordshire in the United Kingdom.

The memorial is a tribute to 309 British and Commonwealth soldiers who were court martialled and shot during World War I primarily for offences of cowardice and desertion. Young Harry Farr was one of them. This battle hardened soldier fought bravely for the British in the First Great War. His trench was shelled and he sustained a disability due to which he was repeatedly admitted in hospital. At one stage he was refused admission in a medical establishment on the pretext that he was not ‘physically wounded’. He was suffering from ‘shell shock’ or what is now known as Post Traumatic Stress Syndrome (PTSD).
Private Farr, in a fragile frame of mind, went missing for three hours, and when located, was arrested and arraigned before a Court Martial, which, after a mere twenty minutes of trial, awarded the punishment of death by a firing squad.

The family fought a long war for justice when documents were discovered that despite his medical condition the young soldier had been forcibly sent to the front. The family could not meet success even at the High Court. Despite being refused positive judicial intervention, the United Kingdom, in 2007, granted a posthumous pardon to Private Farr thereby restoring the family’s honour. And with him, due to lack of individual evidence, a total of 306 soldiers executed that dawn were pardoned, providing them the benefit of doubt.

Then is the story of Lieutenant Henry O Flipper of the United States Army. Lt Flipper, born a slave, was the first African-American cadet at West Point to have graduated and commissioned in the US Army. As a military engineer, he was the inventor of the ‘Flipper’s Ditch’, a drainage system for malaria infested swamps, which is still used. Lt Flipper was accused of embezzlement and Court Martialled. He was found ‘not guilty’ of embezzlement but convicted for ‘conduct unbecoming of an officer’ for not having informed his Commanding Officer about some missing funds in his unit, and dismissed from service in the year 1881. Post his dismissal, Lt Flipper built up a successful career also recognized by the Government which appointed him at high offices. Interestingly, despite having been dismissed from service, West Point instituted an award in his name and placed his bust in the academy. Perusal of documents of the conviction pointed out the bias in his trial. It was long thought that his dismissal was the result of an inherent resentment towards African-Americans at the time. It was also discovered that the then Judge Advocate General of the Army wrote a detailed note to the President stating that his dismissal was unwarranted but it was never put up to the President and his dismissal was approved through a one-line non-speaking order. While reviewing the documents and showing moral courage of impeccable nature, the US Army in the year 1976 opined that his conviction was unjust but also stated that it had no power to overturn it, however his dismissal was converted into ‘honourable discharge’ which was permissible with the powers of the Army. In 1999, fully restoring the honour of the first officer of colour commissioned into the United States Army, the then President, William J Clinton, granted a full and unconditional pardon to Lt Flipper.

It’s ironic that the basic provisions of Courts Martial, especially Summary Courts Martial, practiced by the British during World War I, remain the same as on date under the Indian statute except cosmetic changes. The only real changes in how the provisions are effectuated have been forced upon the system due to judicial intervention primarily by the High Courts and the Supreme Court over the years. Though it is also totally agreeable that today’s military hierarchy is much more sensitive towards injustice or miscarriage of justice than the rank and file of the yesteryears. There was a time when the Courts could not even go into the appreciation of evidence of Courts Martial, something which was altered much later in the year 2009 with the inception of the Armed Forces Tribunal.

Why do I write this.

Why I am writing this here today is that due to the primitive nature of military justice being practiced in our country in the past, there are glaring instances of injustice and miscarriage of justice that have come to light years later, some due to a closer analysis in hindsight. Some are such which appear so nonsensical that these would not seem compatible with any of the values professed by our great military which is the pride of the nation. Many affected fought it out and succeeded, but some lost judicially and yet others did not even try. Some died without closure, some are living and looking for closure, and interestingly, under the Indian law, setting things right, even after a judicial verdict to the contrary, is not a far-fetched idea and is in fact provided by the statute, thereby triggering my urge to write this today.

Two glaring examples come to my mind:

The Samba Spy Case

Much has been written about this case popularly known as the Samba Spy Scandal. Many books have also been penned. Many of those affected have exhausted their legal remedies as per law and the judgment rendered in their favour by the Delhi High Court was ultimately overturned by the Supreme Court on an appeal filed by the Union of India. There is, hence, no judicial remedy remaining. But other doors are still not closed, as I would explain a little later. Coming back to the case, de hors the fact that they were unable to secure a final decision in their favour, there are some extremely jarring notes that would move even an untrained non-legal eye-

All accused were implicated essentially on just the statements of two spies, that is, Sarwan Das and Aya Singh and an officer of the rank of Captain who implicated (by his statements) about 52 personnel including, hold your breath, an officer of the Judge Advocate General’s department. The two spies were initially arrested in 1975 but they apparently named others in 1978. The said Captain clearly stated in his cross examination that he had been badly tortured to elicit his statements.

The entire case was built up on the premise of the statement of Aya Singh that one Capt Nagial was the initiator and had visited Pakistan in the year 1974. The charge was later established to be false and Capt Nagial was acquitted of the same by a Court Martial but implicated and convicted in some other case. When the foundation itself was faulty, there was no reason for proceeding in the matter.

Around 40 to 50 personnel and officers were finally accused of spying for Pakistan. All of them were from the same location of a Brigade based in Samba, a small town. Is it possible for such a large number of people being involved in spying for Pakistan from such a small station?

Statements were obtained from another Havildar, called Ram Swarup, who died of injuries after interrogation. The case was built up on confessional statements but there were large-scale allegations of torture.

Aya Singh, the kingpin on whose statements the case had progressed, was apparently killed later while crossing the Indo-Pak border. Could a person with such credentials be considered a reliable witness and could his statements be relied upon to implicate such a higher number of personnel located in a small town?

When no evidence was found by Court Martial against some personnel, their services were administratively terminated.

It is understood that a report was sought by the then Prime Minister from civilian agencies which established that the large-scale implications were no true.

Swaran Dass later made an open statement under oath that he had implicated innocent personnel after being tortured. The statement, made in 1994, was widely covered in the media as were other aspects of the case.

The above points do shake the very foundation of allegations of a large-scale conspiracy. On the face of it, something drastically went wrong somewhere but the wheels were not turned back to avoid criticism.

The curious case of Brig Pritam Singh

In one of his recent articles, Lieutenant General HS Panag, the former General Officer Commanding of Indian Army’s Northern Command, provided an interesting insight into the travesty faced by Brigadier Pritam Singh, known as ‘Sher Bachha’ (Son of a Tiger) on account of his stellar contribution to the battle of Poonch in 1947. Wounded in World War II, Brig Singh was also awarded the Military Cross after he escaped a Prisoners of War Camp. For one year, Brig Singh, then a Lt Col, resisted all the might of the enemy and ensured the retention of Poonch with India. He was promoted to the rank of Brigadier immediately thereafter (as per the system in vogue, officers were promoted directly from Battalion Commanders in the rank of Lt Col as Brigade Commanders in the rank of Brig). Though his contribution is legendary and he was again wounded in the Poonch operations, which area would have had a different history but for the valiant officer and his resolve, this piece is not about his military prowess. Brig Singh, in 1951, was dismissed from service by way of a Court Martial for misappropriating a sum of about Rupees Ten Thousand and a carpet. Other charges were also put into motion, but all collapsed. The carpet was meant as a present for the Air Force from the Raja of Poonch but it was alleged that Brig Singh had stolen the carpet for his own use. Despite the testimony of the Raja that it was indeed a gift from him to the Air Force which was being transported by Brig (then Lt Col) Singh’s battalion, the Court Martial went ahead and convicted him without even examining any evidence or witness in his presence as mandated by law. The allegation of misappropriation was with regard to excessive amount drawn than the actual expenditure and the time when the offence had supposedly occurred was a period when Brig Singh was admitted in a hospital after being wounded in war. Failing to pin him down on corruption charges, the Court Martial managed to convict him primarily on procedural lapses. It was well known during those times that many of his peers were envious of the trajectory of his career and the accolades he had achieved and the word amongst the military masses was that the entire episode was a result of this jealousy to stop his ascent.

Those times were strange. Punishments handed down by the military were not questioned. Courts were loath in entertaining petitions against military authorities and individuals were not aware of their rights. The direct result was that many injustices went unchallenged and this too, perhaps, was one in that list.

Bigadier Pritam Singh died in Punjab, unsung.

Restoring the Clock.

However, there is still a chance of redemption, but not by way of judicial remedy since the same is closed in the Samba Spy Case and barred by limitation in Brig Pritam Singh’s case. The fact that many of those who were affected are no more living makes the situation even more complicated.

Though invocation of judicial remedy is not possible, the Central Government still can very much undo the harm caused to the very concept of justice in such cases. Section 165 of the Army Act empowers the Government to annul any proceeding of any Court Martial on account of being illegal or unjust. This power is unfettered and it does not matter whether a person has exhausted his or her legal remedies or not, and with what result. If, based on the material available, the Government comes to the conclusion that the Court Martial was not just, it can annul the entire proceedings and restore the honour to those who were treated unjustly. In cases of those whose services were terminated or Presidential Pleasure withdrawn, the same, being merely an administrative non-judicial act, can always be reversed by the same authority which had passed the orders of punishment in the first place.

The remedies that I speak of above are not ordinary and are meant for extraordinary situations. However, keeping in view the fact that the systems of military justice in the yesteryears were primitive and there is a possibility of innocents having been meted out unjust punishments, it would only be right, with due diligence, to explore this exercise with full moral courage for restoring their honour.

We need our own version of Private Farr and Lieutenant Flipper here. Though there is bound to be resistance in such cases citing wrong precedents being set, a hackneyed and regularly exercised excuse, a strong political will can make it happen. Besides, setting aside of unjust actions is not a new phenomenon and that is the very reason such rules exist to undo miscarriage of justice. If ‘precedents’ are to be given so much undue emphasis, then the mere existence of those provisions in the statute book becomes superfluous and infructuous.

Will we have our Farr and Flipper moment in India?

Time will tell.

"The Caine Mutiny Court-Martial" to be performed aboard USS North Carolina

Humphrey Bogart
as you-know-who
Herman Wouk's famous play about USS Caine and her wartime skipper (Lt. Cdr. Philip Francis Queeg, he of the ball-bearings and strawberry ice cream) will be performed in Wilmington, NC, aboard USS North Carolina. Details here. Scroll down for a "what's wrong with this picture?" Hint: nice patterned tie on the four-striper to the left.

Sunday, June 24, 2018

Not military justice (yet)

You can't make this stuff up. A Uganda People's Defence Force officer has gone to court to stop another officer (senior to him) from marrying the woman he claims is already his wife. He's also complained, without success, to military authorities. Details here.

Is bigamy an offense under Uganda's military law? If so, is this bigamy? The Marriage Act 1904 provides:
36. Marriages under customary law.

Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of that marriage, of contracting a valid marriage under any customary law, but, except as aforesaid, nothing in this Act shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner applied to marriages so contracted.
There are criminal penalties. Section 179 of the UPDF Act 2005 makes civilian crimes service offenses.

According to this article,
an individual who learns that their spouse has left them for another marriage, like [Roselyn] Namukasa did, can seek redress in courts of law. He says that the aggrieved party can go to court and get an order nullifying the marriage.

“And these people are obliged to separate otherwise not doing so would be contempt of court. One is expected to go back to their partner. On whether he or she will accept you, that is another issue,” [Daniel] Angualia concludes.

Bigamy may be an ignored offence, as the advocate alleges.

That comes off as a leeway for it to be prevalent, but you cannot rule out that a time will come when the state will gain interest in prosecuting suspects of the crime. Since it cannot be told when that will happen, the commendable way forward is to be on the good side of the law.
For a U.S. Army bigamy case, click here.

The Hit & Run inquiry

New Zealand is gearing up for a year-long inquiry into allegations concerning civilian deaths resulting from an SAS operation in Afghanistan. Details here. The Defence Force is assembling a team to represent it in connection with the inquiry. The inquiry itself is being led by a former prime minister and a judge of the Supreme Court. The incumbent Chief of Defence Force previously headed the SAS; his successor did not.

Saturday, June 23, 2018

How to hide 280 pounds of cocaine on board a ship

The training ship Juan Sebastián Elcano was used for drug trafficking.The Juan Sebastian de Elcano is a training ship of the Spanish Royal Navy and at 113 meters (371 ft) long, it is the third-largest tall ship in the world. Despite being the Spanish Navy's most "emblematic and symbolic vessel," Spain's Guardia Civil found 127 kg (280 lbs) of cocaine on board the training ship on July 30, 2014 – stashed in a storeroom where reserve sails are kept. The cocaine was found at the end of a training cruise which stopped in Cartagena de Indias (Colombia) and New York, among other ports, and terminated in Cadiz, Spain.

Despite four years of investigation, the authorities were unable to determine who of the 185 crew members of the training ship was/were responsible for introducing the 280 pounds of cocaine onto the ship during the 2014 voyage. On June 15, 2018, the Military Court, considering the case, determined that the "lack of vigilance" made it impossible to identify those responsible. The lack of control was evident in the lack of a registry of the sailors who embarked or disembarked at the different ports. Even more dramatic was the fact that the Ministry of Defense promoted the ship's Captain at the time of the crime, to the post of Vice Admiral of the Cadiz Arsenal.

The Court proceedings noted that two of the sailors who worked in that storeroom had been processed in another case for trafficking 19.8 kilos of cocaine during the same voyage, and other members of the crew had also been accused of bringing different quantities of drugs on board in Colombia in order to sell them in New York. But according to the proceedings, these facts were not sufficient to charge them with bringing 280 pounds of the drugs on board "when they were not the only ones who presumably carried out this kind of cocaine trafficking."

The situation described by the judge is one of absolute lack of control. Although in theory, the storeroom in which the cocaine was found was reserved to those who worked there, "the lack of vigilance regarding keys and a correct monitoring of the book dedicated to the control of the keys" resulted in a situation where "anyone could enter and stay in the storeroom for whatever time necessary to hide the packages of cocaine." In addition, crew members who were not assigned to work in the storeroom also used it as a place for relaxation.

Furthermore, the judge noted that the Juan Sebastián Elcano was anchored for four days in Cartagena "during which the majority of the crew left the ship with passes, without the military guard controlling neither their entries and exits from the ship, nor the effects which they brought on board; which, it appears, they also did not do in the other ports at which they stopped." That is to say that any member of the crew could bring on board cocaine without anyone registering it.

It appears that the crime of hiding of 280 pounds of cocaine on the ship will remain unpunished although seven crew members were punished for the petty crimes of trafficking in small quantities of cocaine.