Supreme Court of India again upholds the dignity of disabled soldiers

Again coming to the rescue of disabled soldiers denied disability pension, the Supreme Court of India yesterday rendered a detailed landmark decision holding that any disability that arises during service is to be deemed to have been caused by military service unless reasons are recorded as to how the disability was such which could not have been detected at the time of entering into service.

The decision, while dismissing 26 appeals filed by Ministry of Defence against disability pension granted by High Courts and Armed Forces Tribunal to physically and psychiatrically disabled soldiers, again reiterates what had been held by the Supreme Court in 2013 in Dharamvir’s case, in 2014 in Sukhwinder’s case and also by the Punjab & Haryana High Court in its landmark judgement in Umed Singh’s case again in 2014. The following is notable from the dicta of the Supreme Court:

A. The opinion of the medical board stating that a disability is “neither attributable to, nor aggravated by military service” is not sufficient to deny disability pension to disabled soldiers.

B. As per rules, a presumption of fitness operates when a person joins service and it is also presumed under the rules that any deterioration that has taken place in the health of a soldier is due to military service.

C. Claimant is not to be called upon to prove entitlement and he/she shall receive the benefit of doubt.

D. If the medical board holds that the disability could not have been detected on medical examination at the time of acceptance in service, reasons for the same shall be stated.

E.  Provision for payment of disability pension is a beneficial provision which ought to be interpreted liberally so as to benefit those who have been sent home with a disability at times even before they completed their tenure in the armed forces

F. The burden to establish non-connection of disability with service would lie heavily upon the employer since the rules raise a presumption that deterioration in the health of soldiers is on account of military service or aggravated by it. A soldier cannot be asked to prove that the disease was contracted by him on account of military service or was aggravated by the same.

Thanks to the Supreme Court and the Delhi and Punjab & Haryana High Courts for ensuring a life of dignity to our disabled soldiers.

The case of the missing prosecutor

Awoko, which has provided excellent gavel-to-gavel coverage of what must be one of the slowest-moving courts-martial in modern history, has this report on delay due to the continuing absence of the Republic of Sierra Leone Armed Forces prosecutor:

Judge Advocate Otto During has strongly warned that the court martial proceedings will not hold if the lead prosecutor Gerald Soyie is absent in court. He made this statement as a result of the unavoidable absence of the lead prosecutor who complained of sudden illness on 2nd February 2015 at the military headquarters in Freetown.

Lead prosecutor Soyie has been absent for three court martial sittings and according to the Judge Advocate the lead prosecutor should be present for all the sessions.

“We cannot do without him, this is a very serious matter and he has to be here to see how the defence moves with the case” Judge Advocate During said.

He registered his disappointment stating that the court martial was moving at a fast pace.

“It is a pity he got ill and there is nothing the court can do about it” he added.

In another word the court martial has to wait until the lead prosecutor gets better, which cannot be ascertained at the moment, as his condition was not mentioned.

However Major Vincent Sowa, a member of the prosecution team said if prosecutor Gerald Soyie does not show up on the next adjourned date, the defence is at liberty to apply for bail.

He said according to section 79(1) of the Criminal Procedures Act 1965, a person charged with murder or treason shall not be admitted to bail except by the discretion of a judge to do so.

The court martial involves 13 military personnel standing trial for allegedly committing mutiny against the state and the government and have been in custody for 18 months since August 2013.

The court martial was adjourned for Monday 16th February 2015.

Instead of bail, how about simply having another officer prosecute the case? The judge advocate appears to have lost control of this trial.

The case of the missing cases

Something strange has happened to the cases challenging the new military courts before the Supreme Court of Pakistan. The court had the cases on its published cause list for Thursday, but since then the online docket shows no developments, and there is nothing either online or in the news media (so far as Global Military Justice Reform has found) about what happened in court.

Were the cases set over? Is there a rule or custom banning news reporting while cases are sub judice? In contrast, the media have reported that additional cases are being shunted to the new courts, suggesting a government effort to present the Supreme Court with facts on the ground.

Perhaps there is a simple explanation for the fact that the numerous Constitutional Petitions attacking the Constitution (Twenty-First Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015 have dropped off the radar. If so, what is it? The Cricket World Cup?

Civil-military friction in South Africa

The Northern Gauteng High Court in South Africa has held the Minister of Defence and three senior officers in contempt for failing to reinstate Barend Jacobus van den Berg in the South African National Defence Force, as previously ordered. Details here from Bloomberg. The contemnors have five days in which to comply or face jail.

Military justice in Canada -- are changes needed?

Canada's TVA News has run this video report about the book launch for the second edition of Col. (ret) Michael W. Drapeau and Justice (ret) Gilles Létourneau's Military Justice in Action. (Disclosure: the editor wrote the foreword for this book -- calling the authors' work "tough love.")