Friday, December 18, 2015

Just wind, or a just wind?

Outlook has an important article -- "A Just Wind is Blowing" -- on the recent report recommending, among other things, possible reforms in the Indian military justice system. The article reports, in part:
The committee . . . has stayed true to its brief and made observations that are staggering, coming as they do from top brass wont to exert control. The former faujis—Lt Gen Mukesh Sabharwal, Lt Gen Richard Khare, Maj Gen T. Parshad—and Maj D.P. Singh and [Global Military Justice Reform contributor Maj. (ret)] Navdeep Singh, a lawyer, want an overhaul of a colonial hand-me-down that is downright unfair on soldiers of a modern democracy. Risking the ire of the uniformed frat, which guards its systems with ferocity, they’ve said: “Fairplay and justice cannot be sacrificed at the altar of military discipline.” 
They’ve raised questions resisted by the system so far: How impartial is the military justice system? And how insulated is it from command influence? Making a case for far-reaching changes in the dispensation of military justice, the committee says, “Gone are the days when defence establishments could invoke the veil of confidentiality or fear psychosis in all matters in the name of national security. This is understandable in operational and strategic matters, but cannot be allowed to impact administrative, personnel, pensionary issues.” 
Military trials have often been challenged in courts on the ground that they lack in independence and are under the influence of the convening authorities. Superior military authorities even have the power to revise the sentences or findings of courts martial. The committee found that, in the military justice system, there was no clear separation of the powers of the executive and the judiciary. No wonder when these verdicts are challenged in higher, civilian courts, they have often resulted in strictures. 
Progressive democracies like the US and Canada have already created impartial, independent military justice systems, but in India, as the committee noted, “all main organs of a court martial continue to be subordinates of the convening authority, which puts a doubt on their impartiality” and “visible and invisible strings of the military justice system are intertwined with the chain of command”. Agreeing on the need for reforms, former army chief Gen V.P. Malik says, “As our society and systems evolve, old rules and laws are amended. Our military laws are archaic, the structures and procedures should become more impartial. But it has to be done with care, without affecting discipline.” 
One major suggestion from the committee is that, in all three services, the presiding officer and others on a court martial should be from a formation outside the influence of the convening authority. It also says a standing court martial system with suitable infrastructure must be created at two or three military stations under all commands so as to do away with the ad hoc courts martial convened in remote military locations.
Things can move slowly in India (as in any democracy) -- it took decades before suggestions for an Armed Forces Tribunal came to fruition. The report that has been submitted is a very good sign, but the country's leadership has to take ownership of the reform issue and take the necessary next steps. Overhauling the military justice system and shedding pre-Independence features that Britain herself has abandoned is long overdue. A truly fresh start may be asking a lot, but India has the opportunity if it chooses to accept the report's challenge.

Meanwhile, tension continues to mount as U.S. military justice mavens anxiously await the release of the first report of the Pentagon's Military Justice Review Group. Will it be under the tree on Christmas? How profound will its recommended changes be?

1 comment:

  1. This report is most welcome in the field of military justice. The authors should not underestimate the level of resistance their findings and proposals will encounter from the chain of command.

    Speaking of the example of Canada, in the absence of legislative changes, it took nearly 20 years of costly court litigation to achieve a judicial independence of military judges which is not fully complete. For instance military judges including the Chief Military Judge still hold a rank which is well inferior to the JAG and some other 150 officers. In addition grievances made by military judges end up to be reviewed by the Chief of the Defence Staff who is subject to the Code of Service Discipline and, therefore, to be tried by the said judges.

    In R.v.Lauzon, (1998) CMAC-415, the Court Martial Appeal Court of Canada in a unanimous decision wrote at par. 32 and 33:

    [32] In short, if one wanted to apply the existing principles for Courts martial to the judges of the civil jurisdictions, the judges of the Court of Quebec, for example, would have to be appointed by the Minister of Justice, the positions of these judges would have to be assigned to and located within the litigation section of the department, to hear the department's cases, argued by counsel for the department, on behalf of the Minister of Justice and the Executive, over and above the fact that the appointments of these judges would have to be for short terms only and that the power to re-appoint them would lie with the Minister of Justice, and that his or her Deputy Minister would have an influential role at certain crucial stages of the process. This is a completely unacceptable situation in the civil context. The acknowledged need for military discipline and for special courts to enforce it is not sufficient to justify such a significant and fundamental infringement of the principle of the separation of powers, especially because military personnel who face charges based on the Criminal Code have the right to essentially the same guarantees offered by criminal and constitutional law as ordinary citizens (except the right to a trial by jury, section 11(f) of the Charter).

    [33] The organizational and institutional relationship among the Minister, the Judge Advocate General and the members of his or her Office who represent the Executive, and the military trial judges who hear the Department's cases does not, in our view, afford sufficient guarantees of institutional impartiality and independence. A reasonable person who became aware of the prevailing state of the law and the embarrassingly close relationship which exists between the Executive and the judiciary could only conclude, or at least would be justified in perceiving and
    believing, that the Presidents of the Standing Courts Martial are not free from pressure by the Executive at the institutional level. In other words, such a person could reasonably conclude that the military trial judges act through the Executive, with the Executive and for the Executive.

    At the time of writing this comment both the Prosecution and Defence Services are not independent from the chain of command. They act under the supervision of the JAG who is the head of the legal chain of command. In the field of civilian justice, Prosecution and Defence Services report to the Attorney General who enjoys a constitutional status which ensures independence in the administration of justice. Nor are the individuals working in the military Prosecution and Defence Services independent. Their performance is assessed by the JAG, their pay increase depends on such assessment and so are their promotions and postings.

    All in all, the Legislative Branch and the Attorneys General should assume their responsibilities towards the administration of justice, justice itself and the soldiers who suffer from the lack of it.


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