Sunday, December 28, 2014

No military trials for [some] Egyptian police officers

Applying a 2012 decision of the Constitutional Court, the Egyptian Administrative Court has ruled that police officers who have been convicted in military courts are entitled to civilian retrials. According to this report in the Daily News Egypt, the decision doesn't affect those police officers who are assigned to the Ministry of Interior Central Security Forces following conscription into the armed forces. Under an October 2013 decree of President Abdel Fattah al-Sisi, they remain subject to military justice. The latest ruling, narrowing the scope of military court jurisdiction, contrasts with the expansion of military jurisdiction over civilians.

More pushback in Pakistan

Attorney Waqqas Mir
Lahore attorney Waqqas Mir has written a powerful op-ed about the Pakistani military courts proposal for The News on Sunday. His take, in part:
Why is the Constitution being amended? The reason is a 1998 judgement in Mehram Ali’s case by the Honourable Supreme Court of Pakistan. The judgement declared unconstitutional many aspects of Anti-Terrorism Act 1997 — among them the military tribunals. The apex court ruled that the judicial power of the state (i.e. essentially the power to conduct trials, receive evidence, pronounce upon guilt etc.) was vested primarily in the courts of Pakistan. The exceptions to this have been provided by the Constitution in Article 212. A parallel judicial system cannot be used to whittle down or eradicate judicial power and authority. The Mehram Ali judgement stands in the way of anyone trying to establish a parallel ‘speedier’ system of trials in Pakistan. Hence, the government has decided to amend the Constitution — not just to get around the Mehram Ali judgement but perhaps even to change the scheme of judicial power in Pakistan. It will be interesting how the government goes about it but one thing is certain: any such constitutional amendment will be challenged — and it will lead to a major constitutional law ruling in this country’s history. In fact, any judgement regarding this issue might be forced to lay down the “basic structure” theory in Pakistan — a step that superior courts of Pakistan have commendably resisted till now.
It has also been reported that the constitutional amendment will come with a “sunset” clause — i.e. the amendment will cease to be in effect after a specified time period. This raises even greater worries. How many people are we going to “rush” through the trial process under military courts? Is our aim to be as fast as possible or to be as just as possible? If we know that the speedier process will lapse after, say, 2 years then what guarantee do we have that we will not use the process as crushing mill to throw in everyone we can? Stalin’s show trials might be coming to a military court near you.

Saturday, December 27, 2014

Nigerian military responds to campaign suggestion that soldiers protest inadequate equipment

Responding to a political campaign's suggestion that soldiers have a right to protest inadequate equipment (at a time when a remarkable number of multiple-accused courts-martial have been or are being conducted), Nigerian Defence Headquarters has issued this statement:
“In view of the series of insinuations, allegations and false claims being made by certain activists and politicians on the legal and disciplinary process in the Nigerian military, the Defence Headquarters finds it necessary to call on politicians to avoid using the forum or medium of their political campaigns to incite or endorse acts of indiscipline in the nation’s military establishments.
“This call has become necessary as the trend got to another level on Tuesday when a prominent politician declared that “The soldiers have the right to protest for the Federal Government’s failure to fully equip them.”
“It was expected that the fellow quoted or his party would have made immediate moves to correct this fallacy or erroneous impression being propagated especially in view of the level of knowledge of his principal and candidate in forthcoming elections.
Unfortunately, no such gesture seems to be forthcoming.  There is, therefore, the need to caution against the propagation of this dangerous idea before it causes more problems. 
“For the avoidance of any doubt, the military institution rejects this declaration and its intention in all ramifications.  The military law as recognised by the constitution of the federation is an appropriate legal document for the management of affairs of the military. The processes it outlines for handling military offences remain legal and will continue to be applied in the interest of the nation’s security and democracy.

Military justice statistics for Peru

Chief Justice (Brig. Gen. (ret))
Juan Ramos Espinoza
La Republica has an article summarizing the state of military justice: 7101 soldiers and police officers were charged last year, mostly for desertion, while 5% of the cases involved abuse of authority. There were also 1066 cases of theft of weapons and other government property. Among those charged were officers up to the rank of brigadier general and colonel or their equivalent. Convictions were obtained in 90% of the 451 cases that were brought to trial. About 25 Air Force and Navy pilots have deserted in order to work for private firms. They face three-year terms.

Military courts proposal challenged in Pakistani courts and editorial

The legal reaction to the part of the "National Action Plan" that proposes the establishment of military courts in Pakistan has begun. The Daily Times reports that petitions have been filed in both the Supreme Court and the Islamabad High Court. The Supreme Court case,
filed by Barrister Zafarullah, stated that a parallel judicial system cannot function in the country nor the constitution allows it. The petitioner pleaded that military courts cannot hear cases of civilians, and noted that the Supreme Court has already given its verdict against the formation of military courts. . . .
As for the second case,
[the] participation of Attorney General (AG) Suleman Butt in legal consultations for setting up military courts (MC) has been challenged in the Islamabad High Court (IHC). Shahid Orakzai, in his petition filed on Friday, has requested the IHC to inquire from AG if he has any orders issued by federal government in respect of constitutional amendments. The petitioner said that he would withdraw his petition if written orders of federal government are provided in the court otherwise court should declare that article 57 of the constitution does not allow AG to work out draft of constitutional amendment.
A stay order has also been sought from court lest this illegal step on the part of AG may cause any harm to constitution. The petitioner made it clear on the court that AG has not taken oath under the constitution.
Whatever one thinks about the military courts proposal on the merits, both cases seem strange. In the first, if the plan is to amend the Constitution to permit the new courts, how can that be objected to? Can a constitutional amendment be unconstitutional? In the second, does the Attorney General need legislation simply to prepare a draft?