Saturday, March 28, 2015

Russian Army to prosecute soldier who is charged with killing 7 Armenian civilians

The Russian Army is going ahead with plans to conduct a murder court-martial at a Russian base in Armenia for a Russian soldier who is charged with killing seven Armenian civilians off the base. There is pushback from Armenian legislators who believe the soldier should be prosecuted by Armenia because the offenses occurred off the base. Details here.
A member of Armenia's National Assembly, Aleksandr Arzumanian, repeated the demand of Armenian authorities that [ValeryPermyakov be handed over and tried in an Armenian court, arguing the crime was committed on Armenian territory not on the grounds of the Russian base.

Egyptian military trials of civilians

The Egyptian military courts continue to try civilians. Click here for a report from the Muslim Brotherhood's website. Excerpt:
On Tuesday – March 24, 2015, a judgment confirming the death penalty was issued by a military court against Abdul-Rahman Syed, a high school student, in serious violation of all international conventions signed by Egypt. For one, Article 10 of the Universal Declaration of Human Rights, signed by Egypt in 1976, states that "every human being on equal footing with others has the right for his/her case to be heard before an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him". 
Further, court-martialing civilians is a violation of Article 97 of the Egyptian Constitution of 2014, which stipulates that "The right to litigation is sacrosanct and guaranteed to all. Citizens should be tried in front of an ordinary court. Special or exceptional courts are prohibited". Given that article, those students' trials are void ab initio, and they have no basis in any legal context. Their rulings also stand null and void from the very beginning. Furthermore, charges filed against the students are retaliatory in nature and not realistic at all in many cases, according to the minutes of the prosecution.

Spanish Civil Guards union pushes back on military jurisdiction

We learn from this piece in La Opinión of a growing controversy over the application of military justice to Spain's gendarmerie, the Guardia Civil. Evidently, the heart of the problem is a controversial 2012 decision of the Supreme Court expanding military jurisdiction:
The Unified Association of Civil Guards (AUGC) has demanded removal of the Military Criminal Code on the ground that it threatens fundamental rights and implies that the policemen are soldiers when carrying out their police duties, and accuses the government of wanting them to be "militarized police" and "not to question the orders of their superiors." The head of the association with the largest representation in the Civil Guard (over 30,000 members), Alberto Moya, at a press conference in Santa Cruz de Tenerife yesterday described the grave situation facing the Guardia Civil's use of the Military Penal Code. Moya was accompanied by AUGC's secretary genera for Tenerife province, Juan Fernández, and the secretary of the Association, José Farfán
Some 30 civil guards are currently pending military prosecution, "a situation 'unprecedented' in the rest of Europe." Moya and Fernández pointed out that civil guards by law were supposed to be subject to the Military Penal Code only in "extraordinary situations" and in time of war, siege or while performing military missions or when police are integrated in military units. [Rough Google translation.]

Friday, March 27, 2015

Self-defeating plea by the Army and the Ministry of Defence in the Supreme Court of India

Cross posting this from my blog.

There is something very unique about the military community in India, and that is, axing their own rights and then celebrating it, realizing quite late as to what has hit them!

This short-sighted approach has cost us a lot in the past. But then would we ever learn? Of course not!

Which organization would appeal to the Supreme Court seeking abrogation of its own fundamental rights?

Read on!

This post is again about the recent decision of the Supreme Court on an appeal filed by the Ministry of Defence on the jurisdiction of High Courts to entertain writ petitions against orders passed by the Armed Forces Tribunal.

Some of the members of the military community, thankfully in minority now, were trying to sell the idea of a direct appeal to the Supreme Court arising out of orders from the Armed Forces Tribunal, on the plank of it leading to ‘quicker justice’. Little did they fathom that what they were terming as ‘quick’ justice was in fact the absence of any judicial remedy at all due to the curtailment of the jurisdiction of High Courts. This is so since there is no vested right of appeal before the Supreme Court unless there is a ‘point of law of general public importance’ involved in the case. So effectively, as per the current system after the ibid decision, High Courts cannot interfere and the Supreme Court cannot be approached except in exceptional cases involving ‘public importance’. Moreover, there is no appeal at all provided, even to the Supreme Court, for interim orders passed by the AFT if either of the parties is dissatisfied. Besides that, even if the appeal to the Supreme Court had hypothetically existed as a matter of right, defence personnel or veterans or widows or their families cannot even dream of approaching the Supreme Court for their cases, making the entire concept of justice redundant for them, to say the least.

One of the cardinal principles in a democracy is the availability of judicial remedy in case a person is dissatisfied with a judicial order by a forum- a right available in abundance to each citizen in our country too, including all Government servants, except now for defence personnel, veterans and their families. And this absence of judicial remedy was being celebrated by some as ‘quicker justice’.

Now comes the shocker. One of the pleas taken by the Ministry of Defence (and also in all probability, the Army) before the Supreme Court in this case was that Article 33 of the Constitution of India empowers the system to restrict or abrogate fundamental rights of members of the Armed Forces and hence the fundamental right of remedy of a writ petition stands eliminated for the defence community.

This ground professed by the system therefore seems to suggest that members of the Armed Forces do not deserve the fundamental rights as guaranteed to other citizens of the Country. Have you ever heard of any organization placing before the Supreme Court a prayer to curtail its own rights? Well, now you have.

I find this plea detestable on multiple grounds:

Firstly, Article 33 purely deals with maintenance of discipline while on duty and has no link whatsoever with the right of defence personnel to seek invocation of the writ jurisdiction of Constitutional Courts, that is, the High Courts and the Supreme Court.

Secondly, the same Article 33 is applicable to all other uniformed services, including the Police, have the rights of those organisations been abrogated or restricted in this regard? Have those organisations or will those organisations approach the Supreme Court with such inane pleas? A civilian government servant can invoke writ jurisdiction of the High Court if he/she is dissatisfied with the order of the Central Administrative Tribunal, but now a member of the military cannot! Does this call for celebration?

Thirdly, most of the cases relate to veterans, widows and family members and Article 33 has no applicability over them. And what would happen to Article 39A which entails equal opportunity to justice?

Fourthly, why on earth would the Army or the Ministry even attempt to suggest to the Supreme Court or elsewhere that the defence community does not deserve the fundamental rights as enjoyed by each and every citizen of this land. Has the top brass analyzed this plea, the decision and its after-effects on the status of members and former members of the military?

Mark my words, since independence this has been the biggest hit to the rights of the protectors of our frontiers, and it does not seem that most of us have realized it.

Yes, gullible. And sad. 

Military courts in Pakistan: Reuters investigative report

Reuters is running this informative piece about Pakistan's military courts. Excerpt:
Critics say the new rules cede too much ground to the military, which towers over Pakistani politics despite the first ever handover of power from one civilian government to another two years ago. 
A Reuters investigation of legal documents provided by lawyers and families of those tried under existing military courts also highlights concerns over how fair and accountable the new courts will be. 
Some convictions would have been thrown out by civilian courts, according to lawyers involved. Several defendants said they were denied access to legal representation in breach of military law. Some said they were tortured in custody. 
The military can, and sometimes does, dissolve and reprimand courts that reach verdicts they disagree with, then order repeated retrials, according to court documents and former military officials. 
"This happens often. The military is command-oriented, right from arrest until execution," said former military judge Inam ul-Rahiem.

He said he was forced into early retirement for delivering judgments the top brass disliked. He is now a defense lawyer in high-profile military cases.
Pakistan is in the process of adding new military courts to try civilians under the recently-enacted 21st Amendment to the Constitution, the validity of which is the subject of a host of Constitutional Petitions in the Supreme Court.