Minister Rocha to assume presidency of STM on Monday

Min. Maria Elizabeth Rocha

Consultor Jurídico reports (rough translation):

For the first time in its 206-year history, the Superior Military Tribunal of Brazil will be headed by a woman. Minister Maria Elizabeth Rocha Guimarães Teixeira will be sworn in next Monday (16/6) at a ceremony before the full court in Brasília, scheduled for 5:00 p.m. Minister Fernando Fernandes will assume the Vice-Presidency.

Maria Elizabeth Rocha will complete the term of Minister Raymundo Cerqueira, who has retired. She was also the first female minister to be appointed to the military court, in 2007, occupying one of the three seats reserved for lawyers. She will serve until March 2015.

A major project for the STM will be scanning the court's files. "Historians, political scientists, scholars and jurists have here a source of study that is extremely rich and available to anyone. Scanning will provide public access to important cases in the history of Brazil. This is the first way to disseminate this ancient and little known body of law," she said.

The minister also intends to fight for the inclusion of a representative of Military Justice on the National Council of Justice. "It was an inexcusable oversight when the 45th Amendment did not include the court in the composition of the CNJ, but subjected it to their rulings, which seems absolutely unconstitutional." She also hopes to promote changes in the Military Penal and Criminal Procedure Codes.

Armed Forces Tribunal: twice bitten, not even once shy!

Judicial incorrigibility at times amazes me.

A mirror image of the case I am going to comment upon here has already been reported in these pages, when the Punjab & Haryana High Court (HC) had set aside a Court Martial wherein the Judge Advocate was of an inferior rank than the accused. Of course the HC had intervened after the Armed Forces Tribunal (AFT) failed to render justice.

The HC, in another similar case (Lt Col AC Tiwari Vs Union of India), has now issued a notice of motion to the Union of India as well as the AFT and the next date of hearing is fixed for 31^st July 2014.

Colonel Tiwari had challenged the verdict of a Court Martial wherein (besides merits of the charges) one of the grounds put forth was the inferior rank of the Judge Advocate sitting on the Court Martial. The basis of challenge of course was the dicta of the Supreme Court (SC) in Major Charanjit’s (2000) case wherein it was held that inferiority of rank vitiated the Court Martial.

The AFT however, vide its judgement dated 30th January 2014, ruled that the judgement in Charanjit’s case was only applicable to Court Martial cases pending at the time of the said judgement and for the future and not to cases such as the Tiwari’s Court Martial which had already reached finality and whose sentences stood promulgated.

Two weeks to go for Military Justice Review Group suggestions

Don't forget: suggestions should be submitted to the Department of Defense's Military Justice Review Group by July 1 (details here). When you submit your suggestions, please share them with others by pasting them into a non-anonymous comment in response to this post. That will let others have an opportunity to know what is on the Review Group's table and may in turn stimulate further suggestions.

90% reversal rate for the Armed Forces Tribunal

Further to yesterday's post, this article from the Times of India reports that the High Court has set aside decisions of the Armed Forces Tribunal about 90% of the time since the Delhi High Court decided in 2011 that AFT decisions were subject to review in the High Court as well as directly by the Supreme Court. The decision noted here yesterday was only one of 30 reversals made public on a single day last month. All were from the AFT's Chandigarh Bench. The article adds:

Major Navdeep Singh, founder President of AFT Bar Association and a high court lawyer, said the HC orders have come as a huge relief for retired military men. Otherwise, it was very difficult for them to approach the Supreme Court due to high cost of litigation. 

Chairman of All Indian Ex-servicemen Welfare Association, Advocate Bhimsen Sehgal said that AFT should be wound up immediately because the sole purpose of formation of military tribunals have been defeated, as the ex-servicemen are not getting relief due to attitude of adamant administrative members of the AFT who are retired senior defence officers.

Indian Army general court-martial set aside after 30 years

Mr Justice S.S. Saron

The Punjab and Haryana High Court has set aside the 1984 general court-martial conviction of Naik Kulwant Singh. He had been convicted of mutiny, desertion and aiding desertion following Operation Blue Star (the Indian Army's siege of the Sikh Golden Temple in Amritsar), was sentenced to two months' confinement, and upon discharge (with 15 years' service) was denied a pension because of his conviction. He sought relief unsuccessfully from the Armed Forces Tribunal, but prevailed in the High Court. The Hindustan Times account reports:

[T]he bench headed by Justice SS Saron declared the GCM as null and void for reason of infraction of Rule 180 of the Army rules.

Under this rule, a person is given opportunity of being present and participate in the inquiry and can give statement or evidence or cross-examine witnesses.

“Insofar as the delay in approaching the court is concerned, it may be noticed that right of pension is a continuing obligation and the fact that the petitioner has come to the court after a long period, would not disentitle him for the pensionary benefits,” reads the high court judgment. “The judgment will benefit a number of soldiers as in most cases the army rules were not followed,” said Arun Singla, counsel for Kulwant Singh.