Saturday, May 23, 2015

Memorial Day, Monday, May 25

Ball's Bluff National Cemetery, Leesburg, Virginia

"Dawn" and sunset

Dawn, the influential Pakistani newspaper, has run the following discouraging editorial suggesting that the 21st Amendment, which authorized military courts with power to try civilians for two years, presents a nonjusticiable political question:
THE Supreme Court is grappling with a two-fold question: can a constitutional amendment ever be struck down? And does the 21st Amendment to the Constitution, as a result of which a new regime of military courts has been established, meet the criteria for an amendment to be struck down in part or in full? 
The sheer magnitude of what was done in January by parliament has thus once again come into focus.

Effectively, parliament created an exception to the existence of fundamental rights in cases to be tried under the new military courts regime.

It has taken away the right of the superior judiciary to enforce fundamental rights in those specific cases. It is a clear abomination, one justified in the name of expediency because the terror threat had reached a magnitude that threatened to engulf state and society.
But there is a prior problem for the court here: nothing in the Constitution suggests that the Supreme Court has the power to strike down an amendment passed by parliament. To find that power now, one would have to go against the grain of several past judgments and wade into the speculative realm of a basic structure of the Constitution. 
Not every problem ought to have a judicial solution. There is a category of issues that are political questions. Perhaps the military courts regime falls into the latter category — an abomination though they may be, if the superior judiciary finds for itself a supra-parliamentary role, how might that be used by the Supreme Court in future cases, when amendments to the Constitution are not clear-cut violations of fundamental rights?

There is danger in finding powers where none were known to exist before. Parliament is an elected body and the people can express their displeasure with something their elected representatives have done by either unseating them at the next election or mobilising to put pressure on parliament to consider rectifying the original problem. 
In this case, the original problem is a decrepit criminal justice system and the need for urgent reform. 
Reform is a combination of legislative and executive action. But has parliament demonstrated even the slightest interest in getting the government to focus on criminal justice reform?

It appears that after caving in to pressure from the military to establish the new regime of military courts to try so-called jet-black terrorists, parliament and the government are content with the sunset clause in the 21st Amendment, whereby the parallel regime is set to lapse in 2016.

But inaction on the reform front could prove to be reason enough to demand an extension of the black law in 2016.

It hardly seems likely that the country will be cleared of the very worst of terrorists and their leaders in 18 months’ time. If the ordinary criminal justice system is not in shape to deal with the terror threat by then, then what?
The editors seem resigned to hoping that Parliament somehow musters the courage to resist the temptation (read: military pressure) to make the 21st Amendment permanent rather than allowing it to sunset at the end of next year. Unless Parliament takes decisive measures immediately to fix the civilian criminal courts and related processes -- whose shortcomings were the putative basis for the 21st Amendment in the first place -- one can only assume the pressure to keep the military courts in existence past their current "sell by" date would be irresistible.

What is missing from the editorial is any recognition that there is respectable contemporary authority for the notion that a constitutional court like the Supreme Court of Pakistan can hold even a constitutional amendment unconstitutional. Has anyone at Dawn actually studied the case law and scholarly literature in this regard? One would hope so, but you would never know it from this editorial. Dawn should commission an op-ed on the subject by some broadly respected Pakistani scholar -- perhaps a retired jurist -- who can do justice to the issue. It would also serve its readers interests by reproducing some of the arguments actually being made to the Supreme Court on this score, rather than snippets plucked from courtroom colloquies.

The Supreme Court resumes hearings on the constitutional petitions next week.

Friday, May 22, 2015

Busy times for Egypt's military courts

Egypt's military courts have been keeping busy with prosecutions of civilians, including juveniles. Daily News of Egypt has this round-up:
An Alexandria military court issued sentences against 147 defendants, including at least 12 children aged between 15 and 18, according to the National Community for Human Rights and Law. 
The Egyptian Foundation for the Advancement of Childhood Conditions (EFACC) stated that despite the due release of six children in this case, numbered 152/2014, the foundation maintains that all military trials of children must end. 
The sentences varied, with approximately 50 people receiving life sentences, while 30 received 15-year prison sentences, seven received 10-year sentences, two received seven-year sentences, and 18 received five-year sentences. A total of 37 were found innocent. 
Meanwhile, three children were declared as falling outside the jurisdiction of the court, whereas six more children received 15-year sentences, while three other children were proven innocent. According to EFACC, the charges include “offences against public property and intimidating civilians through force and violence”. 
Offences such as these now fall under the jurisdiction of military courts as of a recent decree expanding the scope of military trials to include any violations against “vital state properties”.
*   *   *

Likewise, military trials for civilians have risen. On 17 May, Egypt executed six men that had been sentenced to death in a military court, while civilians courts are still looking into the legality of their executions. Evidence purportedly points to some of them having been arrested prior to the date of the crimes for which they were convicted.

Religion in the military workplace

Two religious issues are on the screen in the U.S. Armed Forces. In one, the Air Force has decided not to penalize a major general (who is not a chaplain) for giving a sectarian speech in uniform.
Maj. Gen. Craig Olson gave a 23-minute speech at a [congressionally-suppported] May 7 National Day of Prayer Task Force event in which he said God enabled him to fly aircraft, manage programs worth billions of dollars and sell weapons systems to the Iraqis. 
He also asked the audience to pray for Defense Department leaders, who "need to humbly depend on Christ," and to pray for troops preparing to deploy again so they can "bear through that by depending on Christ."
The speech can be viewed here on YouTube.

In the other case, an enlisted Marine has been convicted of, among other offenses, disobeying an order to remove quotes based on Isaiah 54:17 that she had posted in three places around her government computer. The case is before the U.S. Court of Appeals for the Armed Forces, where a former Solicitor General of the United States is seeking a grant of review to litigate whether the prosecution violates the Religious Freedom Restoration Act. If the court grants review, the case could wind up at the Supreme Court. (Indefensibly, most court-martial appeals never become eligible for Supreme Court review either because they do not meet the jurisdictional threshold for appellate court review under the Uniform Code of Military Justice or, if they do, because the Court of Appeals for the Armed Forces refuses to grant review, thereby placing them beyond the Supreme Court's reach.)

Military courts as instrument of repression in Thailand

From Human Rights Watch's one-year-down report on Thailand under the junta:
Military courts have generally imposed harsher sentences in lèse majesté cases than had the civilian courts. Penal Code article 112 provides for imprisonment of 3 to 15 years for lèse majesté crimes. Previously, civilian courts often sentenced a guilty person to 5 years per count. But since the coup, military courts have often delivered harsher sentences. In the case against a Red Shirts blogger, Thiansutham Suttijitseranee (known as “Yai Daengduad”), the Bangkok Military Court sentenced him to 10 years per count. For his five alleged lèse majesté Facebook postings, Thiansutham received 50 years in prison, later reduced to 25 years when he pleaded guilty. Human Rights Watch is unaware of any longer sentence under article 112.