Lalin’s Column: Courts Martial

It appears that after the Presidential elections the Columbian Axis is going to have some more but enervating cheap thrills as the serious business of Army courts martial (CMs) loom. Citizens may be hood winked to believe that CMs bull doze the witnesses and give their verdicts with the crack of a whip so that prisoners are shot at dawn.

“Please to remember the 5th of November, With Gunpowder, Treason and Plot”

Nothing could be further from the truth although that is what the Brits did during the 1915 riots to the Sinhalese when the Colonial government declared illegal martial law. By the way the assertion of the Leader of the Opposition (LOO) who was LOB (left out of battle) during the Presidential election that there is nothing called military law is another bit of skewed punditry, which he being not quite a malingerer, is adept at.

To the military, courts martial (CMs) come next to active operations in order of priority. The success of military operations depends very much on military discipline without which the army would be a rabble on par with the Norwegian Vikings and local mobs. CMs are activated by regulations issued under the Army Act of 1949, The Navy Act and the Air Force Act. Other regulations include Summary of Evidence. The courts are subject to the same rules of evidence and trial procedures as in the civil courts. While France and Germany do not have CMs during peace time and any breach of the normal laws goes before the civil courts, Britain has done away with capital punishment for all offences but India and SL have not.

CMs can be either General Courts Martial (GCMs) for officers only or District Courts Martial (DCMs) for soldiers. Field General Courts Martial are operative only when the army is on active operations overseas. The serious military charges cover mainly misconduct in operations, communication with the enemy, aiding the enemy and furnishing supplies to him, obstructing operations, giving out pass words and giving false signals and incitement to mutiny.

While CMs do try civil offences like theft and fraud, they can also try very serious charges like murder and rape but such cases are normally handed over to the civil courts. Punishments which can be awarded by CMs are usually more severe than in the civil courts.

Contrary to what the LOO has pontificated, there are military courts. However there is nothing called martial law in the statutes of SL. Former President late JRJ thinking it was a panacea, was foolish enough to threaten the country especially the Tamils with martial law when he lost control of military operations in the 1980s .The failed operations were under his nephew Weeratunge and later ‘in law’ Waidyaratne at different times. The LOO then a Minister under JRJ did not record his objections to the martial law threat at any time although he is quite agitated by military law and a relentless fighter with the Western (International) Community (WC) for HRs.

People subject to military law alone can be tried by Courts Martial. Civilians cannot be legally tried by them however much thick skinned or feeble minded a head of state or any politician or even a LOO becomes.

CMs are military hearings similar to civil courts to investigate serious breaches of discipline that cannot be dealt with by the Commanding Officer (CO) maybe because of rank, offence or gravity of the charge.

The CO hands over the case to higher authority who in turn hands over to the Prosecuting Authority, the Army legal services which today are manned by 38 legal officers. There were in addition LLB qualified lawyers who were regimental officers too. CM proceedings are open to the public. Every effort is made to ensure fairness. Unlike virtually anonymous civil judges, military officers who sit on army CMs have to live for the rest of their careers in close contact with the officers and men they have to make judgments on. Therefore they make doubly sure that no miscarriage of justice takes place.

The prosecuting authority is made up of lawyers who are in the military but not in the chain of command. It means that from the outset they can make an independent judgment whether the case can go to CM or not.

The accused receives copies of all prosecuting evidence and is entitled to a defence lawyer, civilian or legally trained military officer. Evidence is presented and there is examination in chief, cross examination and re examination like at a civil trial.

Appeals can be made to the civil courts if the accused has reason to believe the laid down CM procedures were not followed and to the Supreme Court on a point of law respectively.

However the verdict or the quantum of sentence given cannot be turned down. This makes CMs for obvious and compelling reasons very formidable which are why civilians harbour misgivings about CMs.

Army officers are required to be proficient in military law. They are introduced to it as officer cadets in the Military Academy and have to take exams at that level and later to pass the Lieutenant to Captain and Captain to Major exams in that subject too. They gain experience and more proficiency by at first being officers ‘under instruction’ during CMs instructed by the officer(s) of the legal services. They are then more eligible to be appointed members of CMs.

Officers below captain rank are not appointed as members of CMs.

There is no other community that is better educated on law than the armed forces from private to General. The most important aspects they concentrate on are those concerning life and death even as they understand that they could be asked to sacrifice their own lives without question not because the Army Act compels them to (cowardice is an offence) but because it this their duty by their comrades for the sake of their country.

There are 38 officers in the army legal services under a Director who is of Major General Rank. They normally prosecute at CMs. At the conclusion of the trial the Judge Advocate General (JAG) sums up and advises the CM members on aspects of law that must be satisfied to prove each relevant point in the case. These instructions are followed carefully by the CM members in reaching a verdict. Every effort is made to prevent a miscarriage of justice.

The general public should not entertain any fears that at a CM the accused are disadvantaged any more or less than in the civil courts. The proof of the acceptance of CMs is the fact that over 400,000 troops in the 3 services do so without reservation. In some cases officers actually ask to be tried by Court Martial rather than accept summary punishment with a lesser sentence. In the Navy if a ship is lost the commanding officer usually asks to be court martialled in preference to being dealt with in any other way.

Given below are some aspects of military law that may be of general interest:

Army discipline is maintained by the power of the Army Act and its supporting regulations under which standing orders for all types of duties are made. Much of it is about purely military offences such as absence from parade or without leave, insubordination and disobedience to particular orders.

Section 129 of the AA is a catch all law. It takes care of acts that ‘prejudice good order and military discipline’ which covers almost everything. The classic used to be ‘dumb insolence’ when the accused by refusing to acknowledge an order, showed defiance but uttered not a word. Regimental standing orders exploited this section to the full to maintain tolerable flexibility in discipline. It is a military custom that the right hand of army discipline is often softened by the left hand of regimental welfare so that for example an offender who is given detention is sure that his family is cared for during his absence.

Standing orders cover every aspect of a soldiers/officers life beginning with making it an offence to be unshaven on parade, have long hair, dirty boots,(not enough mirror shine polish on the toe caps) improperly dressed (no knife edge creases, fluke in the tie knot) cobwebs in the rifle (means dust in it), dirty rifle (fouling not cleaned out after firing) idle on parade (a flicker of an eye lash, fidgeting) naked (just one button undone on the jacket) idle (out of step on the march, not doing a drill movement correctly) filthy room (dusty- unmade bed) to more serious offences like getting late for a parade, absence without leave, breaking out of camp during restricted hours or not signing the guard room register when entering /leaving camp, all of which are normally corrected with minor punishments like extra parades and extra drills(pack drill) and confinement to barracks. The minimum punishment for being drunk and disorderly is a fine.

Dodgy offences like insubordination and disobedience which can lead to CMs and scandalous conduct which must be tried by CM are next before the serious offences which are with reference to the enemy and were detailed above. They have to be tried by CM. While the Army Act is the glue that maintains discipline it is feared only by unrepentant and habitual miscreants.

In Kenya in the 1950s where the Mau committed the most bestial of atrocities rivaling that of the LTTE, a National Service (2 year conscript) officer ordered his regular army sergeant to dispose of a captured Mau Mau terrorist identified as a leader of the worst gangs. The sergeant refused and on return to camp informed his CO. The officer was indicted and tried by CM and cashiered. There are many examples of the same kind in SL. One that comes readily to mind is that of Lieutenant (later Major General) Janaka Perera who in 1971 refused the order of a major (now dead) of his Engineer regiment who being sent by the then Army Commander (now dead), ordered him to shoot prisoners at the Hanwela Police Station. It is said Lt Perera stuck to his high moral code even during the 1988/9 JVP terror which was worse than the Mau Mau and LTTE terror combined.

Life inside a camp is akin sometimes to that of a monastery. Everything the soldier needs to develop him is found and encouraged there. He lives amongst colleagues following the same path and he has to venture out only when called upon to preserve law and order or for the security of the nation. As a bachelor he will rarely opt to leave his regimental camp except for a few hours until he gets woman struck. At the same time rules and regulations have to be followed, on pain of punishment for the common good.

Generally an officer of superior rank only should put another under arrest but if there is an affray, a junior can restrain a senior. On the other hand if someone whatever the rank is about shoot someone else no one is expected to wait for a superior officer to intervene to prevent murder. If someone is drunk, especially if it is a soldier, officers are advised not to lay hands on the offenders because if they react a very serious charge of assaulting a superior officer can be made. Military police can arrest officers of higher rank if an offence has been committed that needs the offender to be confined.

There have been attempts by pseudo pundits who have a passing knowledge of it to show that military law is impotent when it comes to very senior officers either in arresting them or in trying them. The law may be an ass but asses do not administer military law however much these ‘pundits’ may try to suborn it.

Armies have the answers for all the problems that face it whether in peace time or war; otherwise it could not go into battle and survive. When they are without ammunition they fix bayonets and attack. They do not wait to die especially at the hands of instant pundits who did not bear the burden of war

“Justice is the constant and perpetual wish to render to every man his due.”

- Asian Tribune -