An army court Friday stuck to its earlier finding and pronounced that former 33 Corps commander Lt. Gen. P.K. Rath was not guilty of the charge of intent to defraud the army in the Sukna land scam in West Bengal.
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GCM stuck to its verdict and thus upheld its independence. If it had succumbed to the pressures from the Convening Officer ( GOC Eastern Command), it would have been a clear case of UCI (Unlawful Command Influence)!
ReplyDelete"This Court has consistently held that any circumstance which gives even the appearance of improperly influencing the court-martial proceedings against the accused must be condemned."- United States v. Hawthorne, 22 C.M.R. 83, 87 (US Court of Military Appeals. 1956). The presence of an inelastic attitude on the part of convening authority (CA) may suggest that the CA may not adhere to the appropriate legal standards in the post-trial review process and that he may be inflexible in reviewing convictions because of his predisposition to approve certain harsher findings ( intent to defraud) and corresponding harsher sentences. Is this not a classic case of UCI ? Once the issue of command influence is properly placed at issue, "no reviewing court may properly affirm findings and sentence unless [the court] is persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the command influence." United States v. Thomas, 22 M.J. 388, 394 (C.M.A. 1986) may be very persuasive.
Any criminal justice system should not only be fair but should appear to be so! Does the present facts of the case pass this test?
GCM sticking to its earlier verdict upholds the foundation of independence of the court. GCM needs to be commended for this stand. Kudos to the the GCM and its members.
GOC Eastern Command must have sought the formation Hq JAG advise in arriving at declaring the GCM finding as "perverse"! Does it speak very high of the JAG of the Eastern Command? It is a sad commentary on the JAG that instead of advising against UCI, it was acting as an instrument of unlawful command influence!
It is the judge advocate of the GCM that needs to be appreciated for sane advise to the GCM. Please note that the members of the court are all untrained in law!
“The lack of legal qualification or expe-
rience in the officers making the deci-
sions either at the court martial or review
stages made it impossible for them to
act in an independent or impartial man-
ner.” writes European Human Rights
Court (in Findlay v. United Kingdom
in 1997) while declaring that the Army
Courts Martial of UK are violative of Hu-
man Rights.
Please see: http://www.udayindia.org/content_23july2011/spotlight.htm