MILITARY JUSTICE IN SOUTH ASIA (By: Sadhika )
MILITARY JUSTICE
IN SOUTH ASIA
Authored By: Sadhika
TABLE OF CONTENTS
Serial Number
|
Chapter Number
|
Title of the Topic
|
1.
|
|
Cover Page
|
2.
|
|
Title Page
|
3.
|
|
Declaration by Student
|
4.
|
|
Certificate by Supervisor
|
5.
|
|
The Acknowledgment
|
6.
|
|
Table of Case Laws
|
7.
|
|
List of Abbreviations Used in Dissertation
|
8.
|
1
|
Introduction to Military
Justice System in South
Asian Countries
|
9.
|
2
|
Primary and Secondary Data For the Topic
in Concern
|
10.
|
3
|
Existing Military Laws in Such Countries
|
11.
|
4
|
Drawbacks of These
Existing Military Laws
|
12.
|
5
|
Suggestions to Overcome
These Drawbacks
|
13.
|
6
|
Conclusion of the
Dissertation
|
** BIBLIOGRAPHY AT THE END **
TABLE OF
CASE LAWS MENTIONED IN DISSERTATION
S. No
|
Case Law Name
|
Year
|
1.
|
Halima Khatun
V Bangladesh
|
1972
|
2.
|
KH Eteshamudin V Bangladesh
|
1980
|
3.
|
Lieutenant Prithipal Singh Bedi
V Union Of India
|
1990
|
4.
|
Union Of India V CS Gill
|
2000
|
5.
|
Union Of India V PS Gill
|
2013
|
6.
|
Ranjit Thakur
V Union Of India
|
1987
|
7.
|
District Bar Association,
Rawalpindi V
The SC
|
2015
|
8.
|
Brigadier Retired FB Ali V
The State
|
1975
|
LIST OF ABBREVIATIONS USED IN
DISSERTATION
S. No.
|
Abbreviation
|
Full Form
|
1.
|
JAG
|
Judge Advocate General
|
2.
|
CrPC
|
Criminal Procedure Code
|
3.
|
SC
|
Supreme Court
|
4.
|
AFT
|
Armed Forces
Tribunal
|
5.
|
DGLD
|
Director General Law-fare Directorate
|
6.
|
NIO
|
National Investigation Officer
|
7.
|
OAG
|
Office of Attorney General
|
8.
|
HC
|
High Court
|
9.
|
IPC
|
Indian Penal
Code
|
The Chapter I
(Introduction To Military
Justice Sytem
In South Asian Countries)
The term ‘Military Justice’
refer to the set of laws which are made or are enacted or implemented so as
to give a specific structure to laws
concerned with the armed forces etc.
It is done so,
so that they can easily be identified and get distinguished from the civilians. Such forces play a crucial
role as they protect
their country from various external dangers.
For the purpose of dissertation; we shall be dealing such laws
prevalent in the South Asia. It
comprises of the countries of Bangladesh, Bhutan, India, Pakistan, Nepal and
Sri Lanka. Recently it has
been considered that Afghanistan and Maldives also form part of
it.
1
1 Published
on May 8, 2018
Laws In India
It has three types of military laws- The Amy Act 1950, the Air
Force Act 1950 and the Navy Act 1957. These are the statutory provisions or laws for the army personnel.
**Military- Collectively called Armed Forces**
A JAG n India is an executive for the military, appointed by the
chief of staff in concern. It does not perform functions of any Advocate,
nor of any Judge.
SC3 has held that the military litigants have no vested right
of appeal, against any Armed Forces Tribunal (AFT) in the country.
-
Recently SC4 has ruled that one can only
approach SC after AFT, if aggrieved.
{AFT was established in 2009 under its 2007 Act- A judicial tribunal to
provide justice to the military personnel, in lieu of the existing civil courts)
n Somewhere somewhat situation can be seen in the country of Nepal.
Laws In Nepal
Here a General Court Martial can pronounce life imprisonment as
well as confiscation of the ancestral property in concern to the offenders involved in enmity or
say mutiny etc.
Also there is a Special Court Martial in the country of Nepal
which comprises of a Judge /Chairperson + Secretary of Ministry of Defence +
Chief Judge Advocate. It has the original jurisdiction
to adjudicate the matters which come before it. It is appealable in nature and matters
of appeal can be filed before the SC.
-
Nepal Army Act 2006- Section 22 provides immunity
to the acts done during
the official duty time while Section 66 enlists offences.
Laws In Pakistan
The JAG head is conventionally considered
as the principal law officer of the legal wing of the army. It deals with litigation matters of the
military.
Recently6 the term ‘Director General Law-fare Directorate (DGLD)’ has been enforced. Its power and role,
is considered to be superior to that of a JAG.
Laws In Bangladesh
In this country, Human Rights
Commission has no mandate to take action
against the Forces.
The country has its own Army Act 1952. Any offender under the Act;
will be taken into the military
custody. Concept of JAG is also given. Also the Act provides for 4 types of
Martial Courts- General, District, Field General and
Summary.
- This Act does
not allow for second trial in the same matter.
Laws In Bhutan
Here the Army is divided into 5 military
branches- Royal Bhutan Army, Royal Bodyguard, National Militia, Royal Bhutan Police
and the Forest Guards.
Under the Army Act 1971; there
are 5 types of Court Martial- Summary,
General, Disciplinary, Special General and Royal Bhutan Army.
Laws In Sri Lanka
Laws In Afghanistan
Division or bifurcation of the Armed Forces here-
Afghan Armed Forces + Afghan National Army
+ International Security Assistant
Force + Afghan Air Force + Frontier Corps
There is even a Military Criminal
Procedure Code. It is to regulate the procedure related
to the crimes of the Afghan Armed Forces or its service members.
Laws In Maldives
It has its own National Defence
Force- Coast Guard + Marine
Corps + Special
Forces + Service
Corps + Special Protection Group + the Military Police.
Statement Of Problem
There are many problems or issues that need to be analysed so as to
find solutions for a better military justice
system in the South Asia.
Some accused in the military, in some countries are not even entitled for
a legal help during a summary trial. No right to appeal lie against punishments awarded in summary trial.
The laws of evidence hardly get applied to such forces and their
proceedings are not even of public
nature. In Sri Lanka, an accused may demand that evidence against him to be
taken on an oath.
There is not much provision for review of punishments in the South Asian
countries except in India and that
too since 2009 only.
Also finding and sentencing may be once received by order of confirming
authority. There is no right to appeal to it though now it is available
in India and Nepal.
The Judge Advocate General has neither the functions of a judge nor of an
advocate. It remains under functional
control of the convening authority. This means it is not independent in nature which can lead to bias opinions
or decisions. The powers of the convening authority are not appealable in nature.
One of the biggest issues is that the military justice system in South
Asia lack concepts of the right
to counsel, independent and impartial adjudicating authority, right to fair
trial, reasoned judgment and the
right to appeal.
Even these countries have been reporting cases enforced disappearances,
illegal imposition of curfew, rape, molestation, sexual harassment, killing
of protected persons,
arbitrary detentions and torture.
There have been instances where it has been alleged that Rapid Action
Battalion (RAB), a special police force
with close links to army, has been responsible for these offences but still not much action has been taken yet since
Human Right Commission does not have any mandate to take
any action against the disciplined forces.
Some reports show that no military person has been prosecuted in Nepal
for the abuse of human rights committed during conflicts, lasting for over ten years.
Nowadays the civilians have started doubting
the fairness of a military
trial.
Thus we observe that accountability of serious human
rights violations is a key area of concern in South Asia.
Objectives Of Research
The upcoming
thesis or dissertation aims to achieve some objectives as listed below-
v Finding out the existing military laws and their
actual level of implementation.
v Looking for reasons
of grey areas or loopholes in such laws
v Analysing the laws both in
the interests of the civilians and the
armed forces
v Understanding the rationale of all the military laws that existed
till date
v Check the extent of abuse of military laws with their grounds
The primary focus here being, looking for the solutions so as to
overcome hindrances that come
in between in process of making an ideal Military Justice System in the South
Asian region.
Hypothesis
v I assert that India has one of
the top disciplined military in the world
and that Pakistan
has the least powerful
military.
v I assert
that there is no fair trial procedure
for the armed forces and that Judge
Advocate General (JAG) takes no right decisions.
v I assert that
South Asian countries still don’t have the ideal military justice system and also
that there are no special laws for armed forces in Afghanistan.
v I assert that there are no laws to provide justice
to the victims who are mentally or physically or sexually assaulted by the armed forces.
v I assert that there are no legal ways to provide justice to the military.
Research Questions
This thesis
aims to examine
and critically answer
some research questions which are enlisted as below:
v Are the military laws sufficient in the country?
v Do such laws provide blanket protection to the military?
v Is there a need of hour to provide basic rights of civilians to the military as well?
v What changes can be done in
military justice system to
make it ideal?
v How can their
adjudication system be more fair
and transparent?
Research Methodology
Primary Approach-
-
Making a questionnaire based on basics of prevailing military
justice.
-
Taking opinions of
at least 30 people
on the questionnaire, being
from different fields like say
doctors or lawyers or civilians or judges etc
-
Doing a survey on
the awareness of military
laws prevailing in own
country.
-
Preparing pie charts or bar graphs for the purpose of study.
-
Drawing conclusions from the observations made from primary
data.
Secondary Approach-
-
Looking for authorised recent reports on the military justice system of South Asia
-
Studying of such reports and recommendations or suggestions if any
-
Creating a hypothesis of such study.
-
Making list of observations and drawing conclusions on the same.
Survey Of Literature
I.
Atrocity and American Military Justice in Southeast Asia11
It is a study of how the American military legal system handled the
crimes against the civilians with various atrocities civilians usually
face during the wars era.
II.
Mapping Security in the Pacific12
It focuses on the looking after the interests of the pacific island
countries by emphasizing more on the
roe of its organizational structure, power dynamics and gender play for the outcomes
thereof.
III.
Military Intervention and Secession in South Asia13
It shows how South Asia was too into the secessionist movements within
the military where areas like
Bangladesh, Sri Lanka, Kashmir and Punjab provide for a right situation for the examination of such compelling
issue.
IV.
Everyday Occupations: Experiencing Militarism in South Asia
& Middle East14
It depicts how even during the 21st century, political
conflicts and militarization have come along
to constitute a worldwide social condition instead of being an exception. It
shows how the occupation of military
now increasingly building
relations even with sovereignty.
V.
Women and Politics of Peace: : South Asia Narratives on Militarization15
It discusses the experiences of the females negotiating conflict and
post-conflict situations to deliver some transformative
peace.
It covers aspects like women participation,
militarization, peace building,
violence, justice and even the
accountability therefore.
I.
Army Lawyers in Southeast Asia and Judge
Advocates in Vietnam16
It is about the
history of the ones who served as soldier-lawyers within the Southeast Asia region
in concernparticularly in the period
between 1959 and 1975.
It explains how
Army Lawyers were good at handling more than legal missions and the way how they
enhanced the success of military operations.
II.
The Courts,
The Army and The
Government 17
This research
paper examines how with time, Pakistan has started becoming
more interventionist which is
impacting both the elected political authority and the military also. It also examines
the implications of it.
III.
The Military
and the Indian Democracy since Independence18
It attempts to explore how India has succeeded to put the military out of
the politics and why many other
countries failed in doing so. It also explores on how India’s democracy
survived in middle of all this. It
even draws a comparison of India with Pakistan on such matters and such military
regimes in regard.
11 Trial by Army by Louise Barnett
12 By Sara N Amim
13 By Anne Noronha Dos Santos
14 By Kamala Viswesaran
15 By Rita Manchanda
IV.
Military Justice
in the Modern Age19
It provides
insights from both scholars and practitioners on reforms to military justice in individual countries including UK, Canada,
Netherlands and Australia & in wider regions of South Asia and Latin America parts.
V.
Indian
Military Modernization and Conventional Deterrence in South Asia20
It raises
concerns over the still ongoing continuous military modernization in India and
how it can become or be a threat to the traditional
military balance within the country.
The Chapter II
(The Primary
And Secondary Data)
THE PRIMARY DATA:
QUESTIONNAIRE ON THE BASICS OF MILITARY JUSTICE
SYSTEM IN INDIA-
RESPONSES OF THE QUESTIONNAIRE IN CONCERN-
Observations From The Responses Of The Questionnaire In Concern-
CONCLUSIONS FROM THE OBSERVATIONS FROM THE RESPONSES
v Only 43.3 % claim
that they are aware of the military
justice system in India.
v
Hardly 40% know that
there are actually 3 main laws for the military in India.
v
About 36% know that Military
and Armed Forces are same in a way.
v
40% are aware of the
fact that AFT Orders are appealable in nature.
v
Majority know that Armed Forces
in India enjoy same fundamental rights
as of the
civilians but with some restrictions.
v
60% do know that AFT Principal Bench is in New Delhi,
India.
v
Barely 20% know that there are other 7 Regional
Branches of AFT in India.
v
Majority know the basic-
The 3 divisions of Indian Military.
v 56% around
think or believe that they know the Chief of Defence Staff in India (General
Bipin Rawat being
the concerned- Not Defence Minister,
Rajnath Singh)
v
Almost 43% state that they
are of the concept of JAG in the Indian Army.
The Secondary Data:
Few Recent
Incidents Related To Military Justice System In The South Asian Region
v Delayed system
to provide justice
to the concerned personnel
v
Direct arrest on basis of some evidence
v
Detention one of the common punishments
v
Common offence- Act of sedition or waging war
v
Gross violation of human
rights
v
No speedy trials for the military
v
Assumed to be guilty at first
instance
v
Frequent unlawful killings
of civilians
v
Violation of fundamental rights
v
No all basic rights available to the military,
as available for civilians
v
Special / different military justice system
v
Easily the armed personnel get accused of some offence
/ charge
v
No validity of ‘innocent until proven guilty’
v
Military system shows surrender of human rights
v
Shows cases of the enforced
disappearances
Some Conclusions From The Observations Mentioned Above (Can Be Said As ‘Some
Suggestions’):
v
Need for a more efficient military justice system
v
Need for speedy
trials for the military
v Need of protocol for ‘grounds of arrest’ of the
armed forces
v Punishment to be
at par with the offence / crime
v Need a system to maintain the basic fundamental rights
v Not all offences / acts to be considered ‘against the country’
v More rights to be given
and enforced for the military
v Requirement of some database
to keep check
on disappearances
v Some guidelines of ideal structure for military laws,
needed
v Maybe need of some ‘disciplinary committee’ for the military
v More systematic ‘redressal mechanism’ for the military
could help
v
More opportunity of ‘being heard’
v More judicious use of principles of natural justice required
THE CHAPTER III
(Existing Military Laws In The Concerned Countries)
CASE IN BANGLADESH
On 20 August 1975; KM Ahmed, the then President, issued a
proclamation stating in of the provisions
that no court or supreme court or any tribunal etc would have any power or authority
to question the validity or laws given in any martial law / regulation / rule passed.
It was stated that this Martial Law Order cannot be questioned as it is
out of the original jurisdiction of the
SC. Also it was stated that
- This
was the first case law regarding
the interpretation of martial laws of the country
It
was finally held that any martial law or proclamation or order etc subordinates the constitution of the
nation.
(Period when the
country was under the martial rule completely)
Later in 1976 under the seventh amendment; a new Article was
inserted and thus an office for the
Advocate General was created. In the same year third proclamation was
passed leading to appointment of Ziaur
Rahman as Chief Martial Law Administrator.
- Case related to capital punishment in a special martial
court.
It was held that the Chief Martial
Law Administrator has the powers to transfer a case from the criminal Martial Law Court in concern to the Special Martial Law
Court- As per Martial Law
Regulation 3 (2). Also it was held that supremacy of the country’s constitution
in no way be competent to the Proclamation (s), headed by the Chief Martial Law Administration.
21 Case of 1978
22 Case of 1980
Since then, for many years, the martial law has remained the supreme
law of the land. Even though if
constitution gets evaded, it has been subordinate to the martial law and is
subjected to it. In no case the
Supreme Court can come in conflict with the martial laws.
Thus we can say that the moment the
country of Bangladesh is under martial law (in few circumstances); the constitution along with other
existing laws lose their superiority.
We can observe that no government in this country for decades had no
control over the armed forces of the
nation.
Many leaders have tried to increase their power and have more roles in decision making for its people but till date,
many times, it has not been possible
without the military
intervention.
In such cases; civilian
control do not have their own decision making powers.
It could be
due to-
-
Institutionalized purgatives- Military
having more power in governance
-
Informal contestation in political sphere
So it can be said that
civilians and military primacy
in decision making can be under-
-
Elite recruitment i.e. the
political regime
-
Public policy
-
Internal security
-
National defence
-
Military organizations
Here the decisions of the military depends upon-
-
Hardware of its organisation i.e. the overall structure
-
Software of it i.e.
basis of recruitment, etc
Hence we see that even after independence, Bangladesh failed to implement the
parliamentary system that it had planned for many decades. It has
been ruled many years either by military rule or with military
involvement.
It was in the year that a free and fair general election was conducted. It led to the development of the ‘House of the Nations’
-
Leading to a Parliamentary Democracy & Independent Judiciary
THE ARMY ACT 1952-
-
A comprehensive Act for the Bangladesh Army unit.
It has been in existence
ever since it was passed. It has been followed
by the military till date; irrespective of who has been in power to regulate the country.
Some Provisions-
-
Death penalty can be given by the
court martial in concern: hanging or shooting.
-
Execution of detention
in military custody
or detention barrack
-
4 types of Court Martial-
General, District, Field,
Summary
-
Prohibition of second
trial for same offence
-
Concept of JAG
-
Requirement of judicial
notice within the general military
knowledge
-
Warrant to be issued by
the Chief of Army
Staff
-
Grounds for granting
pardon or suspension
-
Provision for withholding pay and allowances during the trial
-
Even punishment for abetment or attempt
of the offence in concern
Thus we see the role of Court Martial in providing the justice to the military in concern.
Role of National
Investigation Officer-
It is concerned with looking after and sharing information related to the conduct and discipline of the
military unit in concern whenever it goes for a mission.
Role of the Commanding Officer-
-
It has the duty of framing charges
related to sexual
exploitation or say abuse by military accused.
-
Also conducts prosecutions in cases of summary trials.
CASE IN BHUTAN
The Royal Bhutan Army got organized
as a proper military force in the early 1950s, time of
China desire to take
over Tibet.
With time, one standing
army got well established by 1963 with required military training.
The Royal Bhutan Army protects the country not only from the external
threats but also from internal issues related to it say counterinsurgency.
Thus in a way, it is
responsible for both external and internal security of
the nation.
It is answerable to the Ministry
of Home and Cultural Affairs.
On the other hand, the King is the Chief of
the Royal Bhutan Army itself.
Some restrictions on rights available to this Army-
-
Freedom of peaceful
assembly or say association
-
Freedom of movement
Here the government intervenes
whenever there is any report of any kind of human abuse by this
Army particularly.
The Royal Bhutan Army has a systematic well-established military
justice system.
-
Presence of a JAG
-
System to redress
legal issues in Armed Forces
-
Establishment of Armed Forces
Court of Justice- Both civil & criminal
-
Summary
-
General
-
Disciplinary
-
Special
23 Act of 1971
Role of the Commanding Officer-
-
Investigation into administrative and disciplinary matters
-
Head of all troops
for discipline purpose
-
Has the power to
try the accused
summarily
-
Has reference matters
by higher forum
for grave offences
-
Can order for investigation if required somewhere
in the military
-
Enhance the existing policies
for better implementation
-
Can appoint Officer
for sexual exploitation cases and incidents similar to it
Role of National
Investigation Officer (NIO)-
-
Has a legal officer for investigating the allegations in concern
-
Can refer matters
to Senior or Commanding Officer
Role of the Royal Bhutan Army for Justice-
-
Investigate or even prosecute by members of the
concerned security forces
-
Has power to further investigate an ongoing
matter
-
Can transfer case to Office of Attorney General
(OAG) if required
-
Provide housing, food and income for Royal Bhutan
Army / Guards
-
Has provisions for retirement benefits
-
Has started with providing food for army
units in Western Bhutan25
-
Helps the disabled
personnel with welfare
benefits
-
Provisions for pre retirement
training
-
Free medical care for the disabled and the retired
24 Established in 1978
25 A pilot project
of 1979
CASE IN INDIA
Considering what military justice is; it is nothing but a set of
laws which is to govern the armed
forces in the country so as to provide them with justice. The country in
concern, might use special forces for its enforcement /
implementation.
Sometimes it is different from martial law. Martial law is more of
rule of military authority over the
civilians in a country, say during times of war or emergency unrest etc. it
totally depends on the
circumstances at a given point of time.
Justice system in India has been one of the oldest in the world..
It started with British rule in the
18-19th century. It follows the common law system, the traditional
and fundamental system have precedents, customs, usages etc.
The Courts in India have a hierarchy. There is the SC at the highest
level and various HC26 under it. District courts are seen at
the lowest level.
Concept of Summary Courts
Martial-
It was first seen in India after the mutiny in Bengal Army Act 1857. It
was realized that there were
irregular forces especially in Punjab, having lack of discipline. Need had
arisen for a regular disciplined
force with set of punishments and rewards for the armed forces with the mentioning of extent of powers they hand and in what matters.
This led to the Commanding Officer getting the power of convicting
and sentencing any offender in the
military force. Later having the power to issue warrants and even for the execution of the sentences pronounced to
the military offender; thus playing more or less a role of a Magistrate.
With time, the military in India got its structure and became more organized. This led to the establishment of Summary Court Martial. This got legal recognition by
1869.
Proceedings of a summary court martial are held by 2 persons
who are junior level commission officers, who cannot be a part
of the proceedings. Even they do not have any
voting rights.
Thus a summary court martial
can be called a court of offences done by the soldiers
/ army.
It can pass or order for any sentence, depending upon the gravity of the
offence done by the armed personnel in concern. However it cannot pass a death
sentence / penalty.
Also there is a restriction on this summary
court martial. It cannot pronounce
an imprisonment punishment exceeding 3 months to a Major ranked officer.
-
An accused here cannot defend itself with a defending
officer or counsel.
-
Also the Commanding Officer aids in
examination of the concerned witnesses.
The decisions of the Summary Court Martial are considered to be final
in nature and binding. Appeals in
some way can be done before the Officers, superior in rank, as per the
provisions of the law prevalent;
which usually get rejected though since usually an offender is assumed to be
guilty, once declared by the Court
martial.
-
With time, recently
the decisions of Summary Court Martial are now appealable before the HC & SC as valid for other legal
proceedings
We thus observe that till date,
Indian military justice
system still has the base of what the British introduced in the country
under their Rule.
All the laws that exist for the military
in India, are with respect
to the Indian Constitution framework for the armed personnel.
-
Article 21- Foundation of Human
Rights- Right to Life-
For every person
-
Article 33- Poses restrictions on military for the purpose
of disciplined behaviour
during the time of
their official duties
-
Articles 136 and 227 restricts
jurisdiction of higher
judiciary over the court martial
decisions and findings in
concern.
First time ever it was realized
there is a requirement of a separate
forum, backed by some legislation, so as to address and resolve the issues and grievances
of the Indian Military.
Finally in 2007; the Armed Forces Tribunal Act came up;
so as to create separate
tribunals for the military force in India.
This tribunal
is quasi-judicial in nature, responsible to maintain discipline by enforcing law and order in
the Indian Military Force whether it is Army or Navy or Air Force.
This tribunal
hears and decides issues / complaints / grievances / disputes
of the armed forces in concern as per the 3 main Acts,
mentioned earlier- Appealable before
the SC.
This tribunal
even takes up the appeal
matters from the orders or sentences passed
by the court martial, as
per relevant Act.
The Principal
Bench of such Tribunals is in New Delhi, India.
The rest regional branches are in Chandigarh, Lucknow, Kolkata,
Guwahati, Kochi, Mumbai and Jaipur.
Each Bench of every Tribunal
has a Judicial Member and one o Administration. The Judicial
Members are the retired military
members, having rank of a Major for more
than 3 years.
-
A member being JAG for more than a year can also be considered
for the position of Administrative Member of these Tribunals.
Current Chairperson of the Principal Bench is Justice
Rajendra Menon.
The 2007 Act is supported by the Armed Forces Tribunals Procedure Rules which came in
2008. It usually overall follows the procedure practiced by the HC & SC in India.
Usually the court martial acts like a
criminal trial court for the military as per the 3 main
Acts, mentioned earlier.
There are 4
types of court martial (trial by a military court) in India-
-
General
-
District
-
Summary General
-
Summary
Court Martial, in past, have been used for the trial
of the prisoners of war
in military form.
Some common elements of a general
military trial, seen in India-
-
Own defence
-
Open facts and figures
-
Limitation period for each kind
-
Independence and impartiality
-
Rights related to inspection
-
Open trial, for public
-
Rights for the appeal
-
Provisions for grant of
pardon (like President power- Article 72, Indian Constitution)
-
Conversions into writs
Some common punishments given by
Court Martial-
-
Termination from the Forces
-
Forfeiture of benefits
like pension
-
Giving up on the Rank of
the concerned Force
Some Rights or Privileges present for the Indian Military-
-
Under the Pension
Act36
Section 11- Pensions being immune from the attachment related court decrees
-
Under the
Indian Stamp Act37
Article 53, Schedule I- No stamps for pay and
allowances of Sepoys during official duty time
-
Under the Civil Procedure Code38
Rule 28 of
Order V- Process of sending summons to the accused armed
member
Rule 1 of Order XXVIII-
Rules for Military using its powers
to defend its own matter
-
Under the Army
Act39
Section 28- Immunity from attaching arms or
equipments etc, for the official
duty purpose
Section 29- Immunity from arrest in cases of debt in any revenue
matter
Section 30- Immunity from arrest for the
people attending the concerned court martial
Section 32- Prioritizing the
matters related to litigation matters of the armed personnel Section
33- Rights and privileges being relevant as given in other Acts of Air
Force & Navy Section 125- Having a choice between a criminal
court and a court martial
-
Under the Air
Force Act40
Section 28- Immunity from attaching arms or
equipments etc, for the official
duty purpose
Section 29- Immunity from arrest in cases of debt in any revenue
matter
Section 30- Immunity from arrest for the people
attending the concerned
court martial
Section 32- Prioritizing the matters related
to litigation matters
of the air force
Section 33- Rights and privileges being
relevant as given in other Acts of Army
& Navy
Section 124- Having a choice between a criminal court and a court martial
-
Under the Navy Act41
Section 20- Immunity from attaching arms or
equipments etc, for the
official duty purpose
Section 21- Immunity from arrest in cases of debt in any revenue
matter
Section 22- Immunity from arrest for the
people attending the concerned court martial
Section 24- Priority to hear
and decode matters related to the personnel in naval service Section 26- Rights and privileges being relevant as
given in other Acts of Air Force & Army
-
Under the Arms
Act42
Sections 3, 4- License for the
military for carrying an arm or say fire
arm or any ammunition
Section 45- Permission for the military by the Government for using
the arms & ammunitions
-
Under the CrPC
Section 45- No member of the armed
personnel can be arrested
for act done during the duty
Section 197 (2) - No prosecution
to be begun for the military
doing its official duty
Section 475- Persons of the military
to be tried only by the concerned
Court Martial and in some
cases even a HC can do so.
CASE IN PAKISTAN-
It would in a way be considered like defaming the nation’s government and
thus can lead up to Rs. 5 lakhs fine or 2 years
imprisonment or both, as the case may be.
Usually the punishments
for the military offenders are harsh in nature
in Pakistan.
For example,
in 2019, 2 Army Officers were directly given
death penalty in a spying matter.
It aims at
providing a type of tribunals which is impartial
and independent in its
decisions.
With time, in 2017, now there is even
provision for punishing the terror
suspects in military.
Commonly known as the Military Courts case, it was held that the latest
amendments for the military justice in the country is constitutional in nature and it meets the
standards for performing a fair trial to the military personnel
There are 4 types of
court martial (trial by a military court) in Pakistan-
-
General
-
District
-
Field General
-
Summary
Court Martial, in past, have been used for the trial
of the prisoners of war
in military form.
General Court
Martial-
It is the highest trial court in the nation. Its convening officer may dissolve
it, when it seems fir,
for the purpose of
maintaining law and order.
It requires a judge
advocate or a substitute to commence the legal proceedings.
District Court Martial-
It is a trial court for relatively less serious offences or crimes and it mandatorily requires
the presence of a judge advocate in its proceedings.
Field General Court Martial-
It has the powers to do trial and pass any sentence to the concerned
military offender as per the provisions
of the Army Act 1952.
Its proceedings consist of at least 3 officers.
Summary Court Martial-
It is a trial
court for the minor level serious offences like those offences having
punishment of imprisonment for a term less
than a year.
It can also not award
a punishment exceeding 3 months to the one with
Major rank.
All the matters
in the court martial are appealable
in nature whether it eb before the HC
or the Sc, as the case may be.
First appeal is done to the Court
of Appeals as per the concerned Acts.
Even the concept of ‘review’
is present for the tribunals or the court martial
decisions.
Summary Court Marital
District Court Marital
General of Field Court Martial
Court of Appeals
Complaint to the Chief of Army Staff in concern
High Court or
the Supreme Court
Provisions for Seeking
Pardon
Role of a Judge Advocate in Pakistan-
-
To give legal
advice in matters of the prosecution of accused personnel
-
Can conclude evidence and form an opinion in some matter
-
Looks after the accused military
offender so that trial is done in a fair way
-
Needs to be present in matters
to be taken up by the general court
martial
-
To determine fairness
of trials, with no legal qualification
50 SC in
1975
CASE IN NEPAL-
Its structure is more or less
same as of that
of Indian Military Justice System.
The Military Structure in Nepal-
-
The Army
-
The Air Wing of
Army
-
Armed Police Force
-
The Naval Army
-
The Marine Force
The Army Act 2006 of it,
under Chapter V talks about some privileges available to them-
-
No case to be
filed against any act done during
official duty
-
Protection from arrest
from the ones attending military
legal proceedings
-
No seizure or forfeiture of the arms, vehicles
etc of the military
-
No freezing of the salary and the allowances
-
Nepal’s military to be given priority while hearing the cases
-
Provisions for the review
or revisions of decisions
-
Laws for military, not to be affected by other laws
Even for the welfare
of the military in the country, Chapter
VI of the Act talks about the
creation of an Army Welfare Fund.
In the year 2008, the Directorate for Human Rights was established. It has a military personnel department as well.
Based on its recommendations; Nepalese Army has enforced many guidelines, instructions, directives etc for the
welfare of the military in the country.
Some examples-
-
Provisions for conducting inquiry before trial
-
Role of the JAG
to look for other evidences
-
Appointment of board
of court martial,
if required
-
Publishing of the court orders
in the military cases
-
Awareness of the laws
among the military
-
Proper training and aid for the personnel in need
-
Creation of women friendly environment
-
Setting up committee for check on human rights
(Refer
to the Chapter VIII of the Army Act) Usually the court martial acts like a criminal trial court for the military
There are 4 types of court martial (trial by a military court) in Nepal-
-
General- 5 or more members
with more than 3 years of service
-
District- 3 or more
members with more than 3
years of service
-
Summary General- 3 or more
members
-
Summary- Presided by officer having
rank of commander or above
The District Court
Martial has no power
to impose death penalty to the military
offender.
Some common civil punishments seen in the military justice
system here-
-
30 days confinement
-
Extra duty hours
-
Fine up to 14
days pay
-
Compensation of losses
-
Temporary suspension from duty
Military offenders in Nepal cannot be tried twice by any forum for the
same offence.
Some role of the JAG in the
Army-
-
Considered to be a judicial officer
-
Can give advice on the
legal matters of the military
-
Supervises the military
in concern
-
Creation of more law and order in the military
CASE IN SRI LANKA
The main legislation for
the military justice in Sri
Lanka is the Army Act 1949.
Here the Army
consists of-
-
A regular force
-
A regular reserve
-
Volunteer force
-
Volunteer reserve
The Commander of the Army has to be appointed by the President of the country.
The Part VI of the Army Act deals with the Grievances of the Personnel.
-
First complaint to be done before
the Commander of the Army
-
All decisions of the
forums are appealable
-
Even a written appeal can done to the President of Sri Lanka
The trials under the Army Act are more of summary
nature, for speedy justice of the personnel. Even there is a trial for cases
of misconduct by the personnel.
Types of Court Martial
under the Army Act-
-
General- Requires 5 Officers if grave offence
else 3 Officers
-
Field General- Minimum
3 Officers
-
District
Some special provisions for the Military
under the Army Act-
-
No trial if once
acquitted from the offence
-
No re trial if once done summarily
-
No prosecution if once all charges removed
on same matter
-
Cases can be sent for reference or revision
-
Provisions for reduction of the penalty
awarded
-
Entitlement of a counsel for the accused
military personnel
The other essential legislation s for the military in Sri
Lanka-
-
Sri Lanka Navy Act with Regulations 1950
-
Sri Lanka Air Force
Act 1949
Even different
writs like mandamus, certiorari and prohibition can also be filed against
the military personnel who are accused of some offence.
-
Mandamus is order from higher
court to lower
court so as to get some performance done which is public in nature
-
Certiorari is more of higher court reviewing the orders
of lower court
-
Prohibition is restraining some order of lower court.
Any offender
from the military,
once assumed to be accused,
will be taken into military custody from
immediate effect.
-
24 hours rule applicable i.e. to be present
before some legal forum
-
Proper written statement to be made stating charges
of the offences
-
Can be released
from custody if no next
step taken within 7 days
-
Reasons for need to
be in custody to be stated before the concerned court
martial
-
No delay in investigation to be
permitted
-
Trial to be done summarily
Only in selected offences, military offender
can be arrested without a warrant.
Some common punishments
for the military offenders-
-
Demotion to the lower rank
-
Reprimand from the official authority of the personnel
-
Deduction of the pay
-
Penalizing in form of fines
-
Temporary suspension
-
Imprisonment
-
Change in troop
Case In Afghanistan
The systematic organized military
force of Afghanistan was formed in the year 2002.
-
It is now more balanced,
ethical and disciplined in its functioning.
The Afghanistan military is divided into-
-
Afghan Armed Forces
-
Afghan National Army
-
International Security Assistant
Force
-
Afghan Air Force
-
Frontier Corps
Overall it is headed
by the Ministry of Defence and General Staff, located
in Kabul (capital).
It is meant to regulate the process of the trials
of the accused in the military force
so as to give a uniform procedure of investigation, evidence collection and fairness in the
trials.
-
The decisions of the courts
are appealable in nature: Court of Appeals
-
No specific jurisdiction in courts to be
followed.
-
A military offender can also be tried under the Constitution of the
nation.
-
There are now military courts to provide more speedy justice to the military.
-
Is applicable to all types
of military forces in the country.
-
With time, even creation of military tribunals is coming up.
-
Statement of accused
by use of force is not
acceptable by court of law.
-
Accused has to be informed
of every step of trial.
-
Accused has the right to
remain silent.
-
Investigation to be done only by the concerned military
prosecutor.
-
Accused has the right to hire a counsel
for its defence.
-
Minimum 3 military
judges to hear every
matter.
-
Supreme Court decision to be considered of the highest
value in cases of appeals.
51 2005
CASE IN MALDIVES
Recently in 2018 year, the Maldives
government passed a law and ordered its military force
to resist from any
directions passed by the SC of the
country.
The same applies for the
process of impeachment of President by civilians and military.
It was enforced so as to lay down a set of duties,
rules, regulations, principles, norms and principles related to the military
force in the country.
It even aims towards
a fairer and speedier justice system for the military.
-
The Act provides
for a National Security Council
so as to advice or say guide
the Commander in Chief in the legal matters.
-
Act allows for creation of Reserved Forces,
if required in some situation.
-
Act prohibits the military from being associated to any political person.
-
Act allows military
working with police
in cases of emergencies.
It also enlists
various powers / immunities / privileges that the armed forces have, whether it be Navy or
Army or the Armed Forces in the country. Some being-
-
No charges to be made to the
military if act done during official duty
-
Only compensation for loss
to be given by military for minor offences.
-
Provisions for using
specially created welfare funds
for the armed
forces.
-
Having license to use
arms and ammunitions
-
Registration of all military vehicles
THE CHAPTER IV
(Drawbacks Of The Military
Laws Discussed)
IN BANGLADESH-
It was in the year
1986 that martial law finally came to an
end in Bangladesh.
It was more like independence for the
nation. The laws for military
and for the ci villains thus had some distinction and separation.
Though there have been so many developments till date, somewhere
still, the head of the Army there holds
s more dominant position during the country’s governance.
We can observe that the
true colours of democracy
do not reflect as in ideology.
One of the flaws we clearly observe
in Bangladesh is that the country was under martial law for
many years which means civilians had no say in its own laws.
The civilians had to blindly follow what the military used to say but
this is not right. Civilians should
have the right
to express what they actually
want or desire from the nation.
Also one cannot impose same penalty or punishment like the military does.
Rights of both the civilians and the military should be apart from each other.
Military is for the security of the country. If they do any wrong then
there has to be different judicial
system for them and different punishments. And they have no authority to impose
all these on the civilians of the nation.
Also the basic or fundamental
rights of the military should be different from civilians.
Military can use arms or
ammunitions for the security purpose but if civilians also tart carrying
every time and misuse the power
of it then it can cause more unrest
and disturbance.
Civilians should have more freedom to
express their views or opinions but
military cannot say everything in public since some facts are crucial to maintain law, order and peace.
In initial
years of Bangladesh, there was no separation of powers in fact only military rule
was there and that too for years.
A country needs military
for protection and not for ruling purpose.
There has to be ideally a parliamentary system so that only
unit is focussed on law making.
This would make Judiciary
separate from the Parliament, thus being independent and impartial in its decisions leading to a fairer
trial.
Also if the military
is responsible for both the governance of the nation
and protecting the nation from threats then it won’t be able to focus on one thing.
All the focus and mindset of the military
should only be on security
of the country and not anything else so as to maintain law and order.
Thus we observe that everyone has some basic implied functions
so being stick to it shows better
performance of the same.
The existing Army Act of the country
made for military, has flaws too-
-
No second appeal
is allowed.
-
Based on some facts,
there is direct arrest or detention.
-
No prior notice
or warrant provision before arrest is there
-
Many time the accused is not
aware of the actual circumstances
-
Family of the accused suffers
since pay and allowances get withheld once accused
-
Commander Officer can easily frame charges on the accused
-
No proper system of appeal for the accused is given
-
Not all fundamental rights are there for the military
-
Sometimes ‘innocent till proven guilty’
also not followed
here.
We need to realize that even military is human but here their human rights are being violated and even
the principles of natural justice too.
By principles of natural justice we mean mainly are concerned with the right of being heard and the
decision of the justice
to be free from any biasness.
IN BHUTAN
As per some findings; it is considered to be a flaw
that the military of the country is responsible for even
the internal threats apart from the
external ones.
This means that for smallest disturbances within the country and military
taking any harsh step for it, can lead to extreme level
political unrest.
This also means that military will be accused even for minute offences
and for the offences that they have even not committed,
which means lack of justice for the
military.
One of the drawbacks
could be the King being the Chief of
the Army.
This shows that the King can even misuse its powers and can command any
punishment for any offence
for the military, accused in
concern.
King should be responsible
for the welfare of the people
and not the military.
There needs to be separate and independent justice system for the
military since sometimes even the extreme steps taken by them, are in the interests of the security of the country.
One of the law provisions state that the government has full freedom
to intervene in the matters whenever there is any case of human rights violation by the
military.
The role of the government is primarily to make laws and promote welfare
of the citizens. Their role is not to look after the judicial matters. That is the work of
Judiciary.
There is a need of a proper systematic military justice system which is
impartial, independent and rationale in its decision making.
Even the military, like the civilians, have the basic human rights for themselves.
The Commanding Officer has too many powers including investigation of the military cases.
There needs to be some authority to which appeals can be done for the
actions done by the Commanding
Officer. Here we again observe that an authority can be misusing the powers apart from what allotted to it easily, which will be detrimental to the
interests of the military.
IN INDIA
In a way we can say that military personal
choice is never
given importance.
This shows how much impartiality and lack of choice is given to the
military in India. We can say that this
is against the justice system of
them.
Many times their point of view is not considered before taking up a
mission and many times the most
experienced military does not get an opportunity to take up more than one
mission at a time even if there is
a need of it.
Even many times the opinions of military do not matter and their Chief
takes a decision without consulting its team force.
The Military in India thus has very less opportunity, less incentives and
less recognition than what they actual deserve for their work done for the security of the nation.
There are very less laws and provisions for the
education of the military.
This means many of them not being fully aware of their rights whenever
any legal matter against them comes
up. This also means they are not even
aware of the basic rights, that is, they can easily be exploited and no legal redressal could be given to them.
Lack of education also means that the Chief cannot help much its force whenever
any crisis arises since
they are not also
aware of the solutions available for them.
The Military
in India have full powers and license to use arms and ammunitions.
This means that they can be easily charges of any crime even during time
of official duties and with no sufficient proof. This is against
the basics of providing justice.
The Military accused of any offence, is taken into custody with no
warrant or any kind of legal notice-
Their basic fundamental human rights being violated.
One of the flaws seen in Military Justice
System in India is the Commanding Officer sometimes having
the role of Magistrate which is
unfair and unjust for the
accused.
Many times the decisions of the orders or the judgments passed by
Summary Court Martial are considered final and binding.
This is against the rules of justices. If an accused is aggrieved by some
decision of any legal forum then at least once it should get the
right of appeal.
Sometimes it could be the case that some witnesses could not be presented
or some fact was mentioned or some
legal error was done so for such cases, there has to be some check system in form
of say appeal or review or anything.
The Indian
Military Justice system
still has laws or its basis of the British
Rule Era.
This shows that somewhere the old laws are being used in the current
legal system. Laws need
to be dynamic, change with time, need and circumstances. It is not necessary
that the offences that offences which existed earlier,
exist today as well.
Also the type of punishments and value of fines also change with time.
Obsolete laws cannot help us now much.
This means that till the time there was no such Act, the military of
India was provided justice in the same
manner as that of civilians.
This means more delayed justice grant system, more paper related work,
more work load on same courts and no expertise for dealing with the cases of the military.
Around 15 Main Benches
of Armed Forces Tribunal
are there in India.
-
This is so less in
comparison to the number of matters pending.
Also these Tribunals more or less
follow the principles of natural justice, which are not much binding in nature.
There is no provision for the legal aid in the laws for India for the Military.
There are many military personnel who are not that financially stable so
as to afford the cost of litigation
or say Advocate to defend its legal case where it has been accused of some offence.
Right to defend is a basic right which is not provided here.
The Summary Court Martial
usually gives imprisonment of less than
3 months.
Sometimes the offence is more grave or serious than expected, seen after
conducting various stages of trial.
But the law bars this Martial for granting imprisonment more than 3 months, which is
unjust and unfair for the interests of the
public at large.
Sometimes the matters of civil contempt are death with Government
instead of Armed Forces Tribunal or any
concerned Court Martial.
This is arbitrary and against the law since in India, only Judiciary can
take up legal matters and decide on it after recording statements, evaluating evidences etc.
The current Laws for Military in India does not have any provision or
the expertise level of the Members of the Judiciary dealing with the offences of the armed forces.
This can result in arbitrary or unfair or irrational or illogical
decision of any legal matter dealing with some offence committed by some armed forces.
There is a need for proper education for them to reach that expertise
level which can actually help the
military getting the right justice. Not only education but there is also need
for some type of formal training
needs to be there, for the practical right training.
There should also be a uniform system for their appointment,
disqualification, promotion / demotion, suspension and aspects related to it.
The 3 main Acts have very similar laws but for different
types of military.
This causes chaos and confusion. There needs to be advanced legal uniform
code which helps in administering the military justice in
right and definite way.
A law degree should become mandate for all types of court martial or members of tribunal
or for JAG so
that justice could be granted in
right directions
There is no right of bail in
any legal provision of the military laws in
India.
Bail is one of the basic human rights of the person detained but
ironically there is not even a single rule or
provision for the military in India
particularly.
No provision for right to
hire a prosecutor in Summary
Court Martial.
Every accused in any part of the world has the basic right of hiring an Advocate
to defend its case. It is the basic
arrest related right. Everyone has the basic principle of justice to be heard once, its
side of version of the case. This shows a gross human right violation.
No law for the military specifically prohibits the second trial
for same offence.
Indian Constitution does prohibit double jeopardy.54 It states
that no person to be charged or tried
or arrested for the same offence twice. But no law in India states the same for
the armed forces, which is a big flaw in the military
justice system.
There is no provision for fast track courts for the military
in India.
Armed forces are responsible for the safety and security of the country.
If the accused is not guilty then it
should be held as speedily as possible. It should not wait for years to be declared innocent. Armed forces are the vitals
for the country.
The concept of JAG is
vague in nature.
It has no essential role in providing justice to the military. It neither
has a role of a judge nor of an
advocate. Its opinions are not completely binding. Rather its view might bias
the decisions of the judicial authorities in concern for the military
legal matters.
IN PAKISTAN-
It has been a good initiative for penalizing the ones who criticize
the military but it has some issue
too. If one is not told about the deficiencies in the services they perform
then they will not improve. It is
about the military of country who is responsible for the security. If they actually
do something wrong then
citizens should have the right to express
it.
The types of punishments for the
military offenders are too harsh
in nature.
Even for spying for small matters, penalty is given as capital
punishment. Agreed that doing anything against
the country and that too by military
is not right but straight
away pronouncing death penalty
for the military is somewhere wrong. It is violation of human rights
and punishment too cruel for the offence
committed.
The concept of Military Courts
came up in 2015.
It is surprising to know that the government took decades to establish
separate military justice system, the ones
who are so important for the working of the
country.
This not only delayed their justice period but also increase the workload
of the existing courts in the country.
The concept of JAG is
vague in nature.
It has no essential role in providing justice to the military. It neither
has a role of a judge nor of an
advocate. Its opinions are not completely binding. Rather its view might bias
the decisions of the judicial authorities in concern for the military
legal matters.
It has a long procedure for getting appeal.
This increases the time period to get justice. Military personnel cannot
work during this period. Their basic
rights also get infringed. Sometimes they are even not given basic pay and allowances during such period.
IN NEPAL-
The Military
accused of any offence, is taken into custody with no warrant
or any kind of legal notice- Their basic fundamental human rights being violated.
Many times the decisions of the orders or the judgments passed by
Summary Court Martial are considered final and binding.
-
This is against the rules of justices.
If an accused is aggrieved by some decision of any legal forum then at
least once it should get the right of appeal.
Sometimes it could be the case that some witnesses could not be presented
or some fact was mentioned or some
legal error was done so for such cases, there has to be some check system in form
of say appeal or review or anything.
There is no
provision for the legal aid in
the laws for Nepal for the Military.
There are many military personnel who are not that financially stable so
as to afford the cost of litigation
or say Advocate to defend its legal case where it has been accused of some offence.
Right to defend is a basic right which is
not provided here.
There is no
right of bail in any legal provision of the military laws in
Nepal.
Bail is one of the basic human rights of the person detained but
ironically there is not even a single rule or
provision for the military in India particularly.
There is no provision for fast track
courts for the military.
Armed forces are responsible for the safety and security of the country.
If the accused is not guilty then it
should be held as speedily as possible. It should not wait for years to be declared innocent. Armed forces are the vitals for the country.
IN SRI LANKA-
The Military
accused of any offence, is taken into custody with no warrant
or any kind of legal notice- Their basic fundamental human rights being violated.
There is no provision for
the legal aid in the laws for the Military.
There are many military personnel who are not that financially stable so
as to afford the cost of litigation
or say Advocate to defend its legal case where it has been accused of some offence.
Right to defend is a basic right which is not provided here.
There is no right of bail in any legal provision of the military
laws.
Bail is one of the basic human rights of the person detained but
ironically there is not even a single rule or
provision for the military
particularly.
The existing Army Act of the country
made for military, has flaws too-
-
No second appeal
is allowed.
-
Based on some facts,
there is direct arrest or detention.
-
No prior notice
or warrant provision before arrest is there
-
Family of the accused suffers
since pay and allowances get withheld once accused
-
No proper system of appeal for the accused is given
-
Not all fundamental rights are there for the military
-
Sometimes ‘innocent till proven guilty’
also not followed
here.
Many times the decisions of the orders or the judgments passed by
Summary Court Martial are considered final and binding.
This is against the rules of justices. If an accused is aggrieved by some
decision of any legal forum then at least once it should get the
right of appeal.
Sometimes it could be the case that some witnesses could not be presented
or some fact was mentioned or some
legal error was done so for such cases, there has to be some check system in form
of say appeal or review or anything.
IN AFGHANISTAN
Afghanistan has no
Civil Procedure Code for its Military
but has one for Criminal cases.
This means there is no uniform
system to deal with the civil cases or offences
done by the military. They usually
follow what the civilians usually follow or justice in such
cases.
The basic or fundamental rights of the military should be different from civilians.
Military can use arms or ammunitions for the security
purpose but if civilians also tart carrying every time and misuse the power
of it then it can cause more unrest
and disturbance.
Civilians should
have more freedom
to express their views or opinions but military cannot
say everything in public
since some facts
are crucial to maintain law, order and peace.
The concerned Criminal Procedure
Code has no provisions regarding the jurisdiction.
This can easily lead to wrong punishments or penalties being given to the military.
Thi can even cause confusion of where to actual file the required complaint.
This can also result
in multiplicity of the proceedings, causing more time to get justice and more pressure
on judicial forums to deliver
the verdict.
The concept of Military
Courts recently got added.
Here we see that the government took decades to establish separate
military justice system,
the ones who are so important for the working of the
country.
This not only delayed
their justice period but also increase the workload of the existing courts
in the country which had to
handle cases of both the
civilians and the military.
There is no right of bail in any legal provision of the military
laws.
Bail is one of the basic human rights of the person detained but still there is not even a single
rule or provision for the
bail of the military particularly.
IN MALDIVES-
The Military has full powers and license to use arms and
ammunitions.
This means that they can be easily charges
of any crime even during time of official duties
and with no sufficient proof.
This is against the basics of providing justice.
The Military
accused of any offence, is taken into custody with no warrant
or any kind of legal notice- Their basic fundamental human rights being violated.
The Armed Forces was
enforced after so many decades
of independence.
This means that till the time there was no such Act, the military of
Maldives was provided justice in the
same manner as that of civilians.
This means more delayed justice grant system, more paper related work,
more work load on same courts and no expertise for dealing with the cases of the military.
There is no provision for
the legal aid in the laws for the Military.
There are many military personnel who are not that financially stable so
as to afford the cost of litigation
or say Advocate to defend its legal case where it has been accused of some offence.
Right to defend is a basic right which is not provided here.
There is no right of bail in any legal provision of the military
laws.
Bail is one of the basic human rights of the person detained but
ironically there is not even a single rule or
provision for the military
particularly.
There is no provision for fast track courts
for the military.
Armed forces are responsible for the safety and security of the country.
If the accused is not guilty then it should be held as speedily as possible.
It should not wait for years to be declared innocent. Armed forces are
the vitals for the country.
THE CHAPTER V
(Suggestions To Overcome The Drawbacks
Of The Military Laws
Discussed)
IN BANGLADESH-
There is a need for proper judicial intervention and system to keep a
continuous check on the human rights violation within the military.
There should be some authority which keeps an eye to see if the accused
military is being tortured or forced to own up the offence which actually
not done.
There should also be a uniform and independent investigation team for
military legal cases so that justice
is actually served.
There should
full respect of international human
rights.
No accused should be treated badly, irrespective of actually offence done
or not. Every accused is a human, whether in military or not, so deserves the basic dignity and respect in the society. It should have all the
basic fundamental rights except for few since he is accused like restrictions
on movement or travel, etc
One of the
recommendations could be providing security to the witnesses
involved.
This will ensure more fair trial and justice to the accused. Many times
the witnesses are caused harm and truth never comes out thus the
accused military gets suffered.
One suggestion could be imposing
time limit to decide every matter related to military
since it is rightly said that ‘justice delayed
is justice denied’.
One can even take the view of the public for pronouncing judgement as public is also concerned for it safety and
security in the country.
The advocated and judges dealing with the military cases, should be
more independent in nature.
They can take views or opinions of others but should take one right decision
based on actual facts and evidences.
There can be human rights activists groups exclusively dealing
with the military.
More interaction with them and more aid from them can boost
up the accused military confidence and can actually help in reaching the ultimatum goal of justice.
The military should have access to all relevant documents and that too of the government.
No fact or figure related to the legal proceedings of accused military should be hidden. The accused military should be fully aware of
every small and big thing related to its case.
There can also be some expert
committee who remains
updated with military
laws time to
time so that military law
regime never gets obsolete or useless.
Family of the accused
military should not suffer.
They should not be
deprived of their basic rights of
claiming the pay or allowances or benefits
associated with the accused military. They should not be openly defamed in
public. Their fundamental rights should be
respected every time.
No second appeal is
allowed for the military.
They should at least get three to four levels of appeal since or tow
appeals is till their Commanding Officer
or related member only who is not judicial in nature and has no knowledge of the exact laws to be applied.
Policy of ‘innocent until proven guilty’
should always be applicable.
No military accused should be detained or arrested or defamed or
suspended just because it is accused. It should
be treated guilty only if pronounced by judicial form in last
appeal.
IN BHUTAN-
The military should not be responsible
for the internal threats of the country.
This s is very much needed because if not done then it means that for
smallest disturbances within the
country, military taking any harsh step for it, leading to extreme level
political unrest in the nation.
This also means that military will be accused even for minute offences
and for the offences that they have even not committed,
which means lack of justice for the
military.
The King should not be the Chief of the Army.
King can even misuse its powers and can command any punishment for any
offence for the military, accused in concern.
King should only be
responsible for the welfare
of the people and not the military.
There needs to be separate and independent justice system for the
military since sometimes even the extreme steps taken by them, are in
the interests of the security
of the country.
There should be
a law which prohibits the government having full freedom
to intervene in the
matters whenever there is any
case of human rights violation by the
military.
The role of the government is primarily to make laws and promote
welfare of the citizens. Their
role is not to look after the judicial
matters. That is the work of Judiciary.
There is a need of a proper systematic military
justice system which is impartial,
independent and rationale in its decision making.
Even the military, like the civilians, have the basic human rights for themselves.
The Commanding Officer should have limited
powers .
There needs to be some authority to which appeals can be done for the
actions done by the Commanding
Officer. Here we again observe that an authority can be misusing the powers apart from what allotted to it easily, which will be detrimental to the interests of the military.
IN INDIA-
There has to
be a
provision for creation of fast track courts for the
military in India.
Armed forces are responsible for the safety and security of the country.
If the accused is not guilty then it
should be held free as speedily as possible. It should not wait for years to be declared
innocent. Armed forces are the vitals for the
country.
The Military in India thus has very less opportunity, less incentives
and less recognition than what they actual deserve for their work done for the security of the nation.
There needs to be more provisions for the education of the military.
This means many of them being fully aware of their rights whenever any
legal matter against them comes
up. This also means they will be more
even aware of the basic rights, that is, they cannot easily be exploited and a legal redressal could be given to them.
More education also means that the Chief can help much its force whenever
any crisis arises since they will also be aware of the solutions available for them.
The Military accused of any offence, should be taken into custody with
a warrant or any kind of legal notice- Their basic fundamental human
right.
One of the
recommendations could be limiting the powers of the Commanding Officer so that it
does not play the role of a Magistrate.
The decisions of the orders or the judgments passed by Summary Court
Martial could be made appealable in nature.
If an accused is aggrieved by some decision of any legal forum then at
least once it should get the right of appeal.
Sometimes it could be the case that some witnesses could not be presented
or some fact was mentioned or some
legal error was done so for such cases, there has to be some check system in form
of say appeal or review or anything.
The Indian Military Justice
system should imbibe
more laws with recent developments.
This is required since somewhere the old laws are being used in the current
legal system. Laws
need to be dynamic, change
with time, need and
circumstances.
It is not
necessary that the offences that offences which existed earlier, exist today as
well. Also the type of punishments and value of fines also change with time.
Obsolete laws cannot help
us now much.
There should be more main Benches
of Armed Forces
Tribunal in India.
Current existing ones are so less
in comparison to the number of matters pending.
A new provision should be added
for the legal aid in the laws for
India for the Military.
There are many military personnel who are not that financially stable so
as to afford the cost of litigation
or say Advocate to defend its legal case where it has been accused of some offence.
Right to defend is a basic right which is not provided here.
The Summary Court Martial
should increase its imprisonment period.
Sometimes the offence is more grave or serious than expected, seen after
conducting various stages of trial.
But the law bars this Martial for granting imprisonment more than 3 months, which is
unjust and unfair for the interests of the
public at large.
The matters of civil contempt should not be dealt with Government,
instead to be under Armed Forces Tribunal or any concerned Court Martial.
It will reduce the extent of arbitrariness which is against the law since
in India. Only the Judiciary should
ideally take up legal matters and decide on it after recording statements, evaluating evidences etc.
There needs to be more expertise level of the Members of the Judiciary
dealing with the offences of the
armed forces.
This can result in reduction of arbitrary or unfair or irrational or
illogical decision of any legal matter dealing with some offence committed by
some armed forces.
There is a need for proper education for them to reach that expertise level which can actually help
the military getting the right justice.
Not only education but there is also need for some type of formal training
needs to be there, for the
practical right training.
There