Wednesday, February 5, 2014

Which courthouse?

Following up on earlier posts about where offenses by military personnel should be tried, consider Rapsing v. Ables, G.R. No. 17185, decided by the Supreme Court of the Philippines on October 15, 2012. The court, per Peralta, J., found that the civilian Regional Trial Court erred in transferring the following multiple murder charge against seven soldiers to a military court:

"That on May 9, 2004, at around 1:00 o'clock in the afternoon thereof, at Barangay Lagta, Municipality of Baleno, Province of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with one another, taking advantage of their superior strength as elements of the Philippine Army, armed with their government issued firearms, with intent to kill, by means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault and shoot Teogenes Rapsing y Manlapaz, Teofilo Villanueva y Prisado, Marianito Villanueva y Oliva, Edwin Aparejado y Valdemoro, Isidro Espino y Arevalo, Roque Tome y Morgado and Norberto Aranilla y Cordova, hitting them on different parts of their bodies, thereby inflicting upon them multiple gunshot wounds which caused their deaths."

Reviewing the statutory text and the legislative history, the Supreme Court held (at 9) that "military tribunals cannot exercise jurisdiction over respondents' case since the offense for which they were charged is not included in the enumeration of 'service-connected offenses or crimes'" set forth in the governing statute.

Where should such charges be tried as a matter of public policy? Where would they be tried in your country?

1 comment:

  1. Under Canadian law a member of the Canadian Forces charged with the crime of murder cannot be tried by a military tribunal if the crime was committed in Canada: see s.70 of the National Defence Act (Act). However the civilian and military tribunals have concurrent jurisdiction over such crime if committed outside Canada: see s.71 and s.273 of the Act. In fact the concurrent jurisdiction extends to all ordinary criminal law offences.
    However, with the exception of murder, manslaughter and abduction of children committed in Canada, all other ordinary criminal law offences, whether committed at home or abroad by members of the Canadian Forces, in all likelihood will be prosecuted before and tried by a military tribunal, thereby depriving the accused of the constitutional right to a jury trial guaranteed by par.11(f) of the Canadian Charter of Rights and Freedoms. The constitutional protection applies to persons tried by civilian courts for serious offences punishable by an imprisonment of five years or more, but is denied when the trial takes place before a military tribunal.
    In my respectful view, as a matter of public policy, equality of rights and treatment before and under the law as well as fairness, no serious ordinary criminal law offence punishable by imprisonment for five years or more should be prosecuted before a military tribunal under the guise of discipline in peacetime. Not unlike a police officer, a soldier is a citizen in uniform. Like the police officer he should be prosecuted before a civilian tribunal where he would regain his constitutional right to a jury trial. In addition he would be entitled to benefit from other procedural and sentencing rights that are denied to an accused when the trial is held before a military tribunal.


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