Friday, April 28, 2017

Civil parties seek to join Cameroon court-martial

Civil parties have asked to join the court-martial of three Anglophone civilians in Cameroon, according to this Radio France Internationale account. Excerpt:
The defence was "ambushed" during Thursday afternoon's hearing, said lawyer Manyi Becky Orock. Three lawyers representing civil parties came before the military tribunal in Yaoundé claiming damages against the accused. 
"They're talking about someone who was wounded," said Orock. "Who is that person, who are those who are trying to complain that they have suffered injury during this Anglophone crisis?" she added. 
The defence objected to the civil parties being brought before the court. Orock said lawyers for the accused argued that the court should have been provided with a letter from the head of the Cameroon Bar Association in order to follow proper legal procedure before lawyers for civil parties could appear in court. Furthermore, it was not clear who the civil parties are, according to Orock.
"They cannot be representing people that we have not seen before the court, there were no civil parties before the court, how could they say they were representing the civil parties," the lawyer said.

Thursday, April 27, 2017

Who can appeal Jadhav's military court conviction?

Dawn reports that Indian authorities have transmitted an appeal by Kulbhushan Jadhav's mother. Excerpt:
His mother’s appeal for the appellate court may not be the right way to proceed because under the military’s legal system, the convict has to do it himself and is issued a document for filing appeal at the time of his sentencing.

“It is a violation of the Army Act,” military law expert retired Col Inam-ur-Raheem said, adding that in military the appeal process had to be initiated by the convict, possibly with the help of a counsel.

However, he noted that in the civilian judicial process, appeals could be filed by someone related to the convict. Petitions against decisions by military courts trying civilians accused of terrorism, he recalled, were filed by the parents of the convicts.
It is difficult to understand why Jadhav would not have submitted an appeal of his own -- or why his attorney (if he had one) would not have done so. 

Five freed (out of 11) on Uganda court-martial appeal

On evidentiary grounds, the Uganda Court Martial Court of Appeal has overturned the convictions of 5 out of 11 civilians who were tried on weapons charges in 2015. The other 6 will serve out their 25-year sentences. Details can be found here. The Court of Appeal rejected all of the appellants' argument that they were not subject to trial by court-martial.
Mr [Elly] Turyamubona [who chaired the three-member appellate court] ruled that Section 119(1) of the UPDF Act provides that a person can be tried in the court martial on accusations of using guns of which the army has monopoly to control. 
"Possession of fire arms was proved by the prosecution witnesses therefore court had jurisdiction to try the appellants," court ruled. 
Court records show that the eleven were among the 57 people who were arrested for attacking policemen guarding a weigh bridge along Kasese-Mbarara High way in Kasese District in July 2014. 
Court heard that during the attack the group was armed with spears and machetes among weapons.
The use of military courts to try civilians is strongly disfavored by human rights standards and forbidden outright by the African Charter on Human and Peoples' Rights. 

Legal context of the Jadhav case

Wg Cdr (Dr) U C Jha has kindly provided the following report on the legal framework of the Kulbhushan Jadhav military court controversy between Pakistan and India:

It has been reported in The Hindu newspaper of today that Jadhav's mother has submitted an appeal. The punishment awarded by the Field General Court Martial (FGCM) to Jadhav was confirmed by the Pakistan Army Chief. The Appeal Court would consist of three members: the Army Chief, another officer, and a judge advocate appointed by him for this purpose. The Appeal Court under section 133B of the Pakistan Army Act has the power to: (a) accept or reject the appeal in whole or in part; (b) substitute a valid finding or sentence for an invalid finding or sentence; (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witnesses; (d) annul the proceedings of the Court Martial on the ground that they are illegal or unjust; (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of sentence or reduce or enhance the same. The decision of Court of Appeal, as provided in subsection 133B(3), shall be final and cannot be called in question before any court or any other authority whatsoever. The Supreme Court can interfere in the case only if the military court has acted without jurisdiction and coram non judice.

Section 133-B reads as under Court of Appeals for other cases:
(1) Any person to whom a court martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within 40 days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court Martial or Field General Court Martial or District Court Martial or Summary Court Martial convened or confirmed or counter signed by an officer of the rank of Brigadier or below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals; 
Provided that where the sentence is awarded by the court martial under an Islamic law, the officer or officers so designated shall be Muslims;
Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff. 
(2) A Court of Appeals shall have power to – (a) accept or reject the appeal in whole or in part; or (b) substitute a valid finding or sentence for an invalid finding or sentence; or (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or (d) annul the proceedings of the court martial on the ground that they are illegal or unjust; or (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act. 
(3) The decision of Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.
Editor's comment: It cannot be seriously contended that the Army Court of Appeals is independent, given the role of the Chief of Army Staff in both reviewing court-martial results and either serving on or designating a member of the Court of Appeals. This means that review by the Supreme Court of Pakistan will be the first proper judicial scrutiny of the Jadhav case (and any other case tried under the Army Act, whether involving military personnel or civilians). Because the Supreme Court's review is, as Wg Cdr Jha notes, narrowly constrained, it falls far short of the kind of meaningful civilian appellate review to which all criminal defendants are entitled as a matter of human rights.

Wednesday, April 26, 2017

Mounties affidavit

A redacted affidavit used to obtain a Search Warrant filed in court by the Royal Canadian Mounted Police (RCMP) against Vice Admiral Mark Norman was previously released on April 16, 2017. The search warrant had shown that the then Vice Chief of the Defence Staff had been under RCMP covert surveillance for months prior to his suspension in January 2017. A fuller version of the same affidavit was released earlier this date under court order. The search warrant chronicles the plan to lease a supply ship for the Royal Canadian Navy which was conducted quite outside the regular official procurement framework. Meanwhile, the Globe and Mail, Canada's newspaper, confirms that the RCMP has alleged that VAdm Norman has divulged cabinet secrets to an executive with a Quebec-based shipyard advising him to use the media to pressure the 'Liberals' into approving a $667-million naval supply ship contract.  The Globe and Mail provides a significant number of highlights from the RCMP affidavit.