Insulting the army

Not long ago we wrote about the case of Yassine Ayari, a Tunisian who was tried in absentia by a military court for insulting the army on his Facebook page and arrested when he arrived at Tunis on a flight from Paris. Nawaat has a good summary of the overlapping provisions of Tunisian legislation here. The article cites three other such cases and asks whether they complied with the law and whether the underlying statute is constitutional.

It seems aberrant today that the military can still try civilians. The jurisdiction ratione personae of military courts - at least in peace - must be limited to military personnel or those who are assimilated to the military.

Winds of Change. Canadian Military Justice In Action

Military Justice In Action - 2nd Edition
Justice (ret'd) Gilles Létourneau and Professor Michel W. Drapeau

The  new edition of Military Justice in Action updates the first edition by including the recent legislative amendments and jurisprudence. However, as Professor Eugene Fidell, who wrote the Preface points out, the book "goes far beyond that by offering a critique of aspects of Canadian military justice over which the waves of changes are only now beginning to wash.  For example, the book takes dead aim at the system of summary trials. It also usefully highlights the gulf that separates serving personnel from civilians in terms of the rights conferred by the Charter.".... It highlights "how the civilian and the military justice systems seem at times to occupy different ice floes that may drift further apart from one another than practical considerations demand".

The book is published by Carswell, a Thomson Reuters company. Further details available at this link. It will be available from the Publisher in mid-January 2015.

Not so fast!

The government's proposal to amend the Pakistani Constitution to permit military courts to try civilians at first seemed to have broad parliamentary support, but cracks are appearing. Two parties seem to have jumped ship. The Express Tribune writes:

"Top opposition groupings Pakistan Peoples Party (PPP) and Pakistan Tehreek-e-Insaf (PTI) reneged from their earlier pledge to back speedy trial courts run by military officers to prosecute hardcore militants. The move is seen as a serious setback to the government’s efforts for building consensus over the National Action Plan."

Dawn, leading Pakistani newspaper, editorializes against military courts proposal

Dawn, a leading Pakistani newspaper, is running a strong New Year's Eve editorial arguing that military courts are not the answer to the country's problems. The lede:

PAKISTAN should not have military courts, not in the expanded form envisioned by the military and political leadership of the country, not to try civilians on terrorism charges and not even for a limited period of time. Military courts are simply not compatible with a constitutional democracy.

Not okay to support Gillibrand bill in public

Senate Armed Services Committee
hearing on role of commanders
in disposition of offenses

The Washington Post reports that an Air Force judge advocate has been investigated and counseled for posting comments on Sen. Kirsten Gillibrand's Facebook page expressing support for the Military Justice Improvement Act, a bill that would transfer disposition authority from commanders to lawyers independent of the chain of command for major offenses. Says The Post:

Don Christensen, a former chief prosecutor in the Air Force, now serves as president of the advocacy group Protect Our Defenders, which backs Gillibrand’s bill. He said the criminal investigation into [Capt. Maribel] Jarzabek would resonate within Air Force legal circles.

“It’s clear that if you support the current system and you do so publicly, then that’s something that’s considered praiseworthy and can get you promoted,” he said. “But if you oppose it and say so, you’ll get criminally prosecuted.”

Anyone remember the service chiefs and TJAGs testifying in opposition to Sen. Gillibrand's bill?

Ex-Chief Justice Chaudry opposes military courts proposal

Former Chief Justice
Iftikhar Muhammad Chaudry

Former Chief Justice Iftikhar Muhammad Chaudry of the Supreme Court of Pakistan has spoken out against the Nation Action Plan military courts proposal, according to this article in Dawn:

“Independent judiciary is already present in the country so there is no need for military courts. Such courts are illegal because the basic structure of the constitution guarantees an independent judiciary,” he said.

Judging by the latest news reports out of Pakistan, the military courts proposal is by no means a done deal. Global Military Justice Reform will keep readers informed.

"How do you say 'Glasnost' in Chinese?" Opening a Closed Door on Military Justice in the PRC

The high-profile investigation and prosecution of three senior Chinese military officials for alleged corruption offences has focused unprecedented public attention in China on the Military Court of the Chinese People’s Liberation Army. But will the trials themselves be open to the public?

Gu Junshan and Yang Jinshan both held the rank of Lieutenant General, and now face a court martial on allegations related to their conduct in their official positions. Gu was deputy head of the General Logistics Department of the PLA until his detention under the disciplinary processes of the Communist Party in early 2012. He was indicted before a military court at the end of March of 2014 on charges of embezzlement as well as offering and accepting bribes. Yang served as deputy Commander of the Chengdu Military Region until he was arrested in July of 2014. He was expelled from the Communist Party in October 2014 amid allegations of bribery and corruption involving the sale of military positions.

But the most senior of the three is General Xu Caihou who rose to the position of vice chairman of the powerful Central Military Commission where he served until 2012. Although retired from active service he is still under the jurisdiction of the military courts. In June of 2014 he was expelled from the Communist Party, and in October he was charged with bribery “in extremely large amounts”.

As Susan Finder has explained on this blog, the judicial reform campaign under the 3^rd and 4^th plenums of the 18^th Party Congress extends to the area of Chinese military law, and improved transparency is on the agenda. The communiqué from the 4^th plenum held in October of 2014 included this passage:

“Build an open, dynamic, transparent, and convenient sunshine judicial mechanism; move forward with open trials, open prosecutorial work, open police work, and open prison work; promptly publish law enforcement and judicial basis, procedures, processes, results, and effective legal documents according to the law; and put an end to secretive work.”

It is not clear though that Chinese authorities equate “open” trials with trials that are held in public. Art. 11 of the Criminal Procedure Law provides that normally all the people’s courts shall adjudicate cases in public (gongkai jinxing). But in practice judicial proceedings in China take place behind closed doors, despite the brave claim in a 2012 White Paper on Judicial Reform that “China’s judicial organs…are comprehensively promoting judicial openness, so as to ensure that judicial power is exercised openly, fairly and impartially, under the supervision of all the people”. The Criminal Procedure Law applies at courts martial, but it is extremely rare for anyone other than military officials to be present at a Chinese court martial.

The PLA Military Court itself is veiled in secrecy. The state Constitution of 1982 avows the existence of military courts and prosecutors, but there is no statute establishing the existing 3-level hierarchy of the Chinese military courts, or setting out their jurisdiction. While the decisions of other Chinese courts are more and more finding their way onto the internet, the PLA Military Court does not have a web-site, or even a publicly avowed address. The Court is believed to hold hearings near a detention facility operated by the PLA General Political Department in a northern suburb of Beijing.

Some Chinese commentators have called for open military trials for senior officers charged with corruption offences, and argue that the well-publicized trial of Bo Xilai demonstrates that the Chinese judicial system can operate with much more transparency. Others fear that an open trial and a concomitant public display of the extent of military corruption will irreparably damage the reputation of the PLA.

The lapse of time since the indictment of Gu suggests though that the decision has already been taken to conduct Gu’s trial in the conventional recondite way, and the next thing we hear may well be an official announcement that the trial and sentencing of Gu have already taken place.

Another lawyer speaks out in Pakistan

Umer Gilani

If the military courts proposal seems like a train wreck about to happen, the good news is that people are continuing to speak out. The latest example is this instructive op-ed by Islamabad lawyer Umer Gilani. The history of Pakistani judicial hostility to military courts he recounts is worth bearing in mind:

"In a large number of cases spread over decades, Pakistani courts have already noted the constitutionally suspect statues of military ‘courts’. In 1980 (NLR 1980 Civ. Quetta 873), at the high tide of martial law, the Balochistan High Court struck down Article 212-A of the constitution, added by General Zia to provide constitutional protection to military courts exercising jurisdiction over civilians. Nor have military courts entirely escaped the scrutiny of our constitutional courts, in their dealings with military personnel. 

"In 1985, the Federal Shariat Court declared the absence of an appellate process under the Army Act un-Islamic and thus unconstitutional. (PLD 1985 FSC 365 upheld by the Supreme Court in PLD 1989 SC 6) The Army Court of Appeals prescribed in s. 133-B of the Army Act was brought in as a result of that intervention. In 2009, the FSC issued another order directing the Army Court of Appeals to provide appellants with greater due process. (PLD 2009 FSC 36) Most recently, in 2013, the Supreme Court commuted a death sentence passed by the Army Court of Appeals. The court reasoned that even though it was not formally sitting in appeal over the Army Court of Appeals, it could still set aside the latter’s orders if they had been passed “without jurisdiction”. 

"The last time army courts were given jurisdiction over civilians in Mehram Ali v. The Federation (PLD 1998 SC 1445), the Supreme Court turned them down. This time around the legislation will come wearing the armour of a constitutional amendment. But, in Pakistani jurisprudence, thanks to the basic structure theory of the constitution, even a two-thirds majority provides no iron-clad guarantee. A few years ago, in the 18th Amendment case, our Supreme Court actually came quite close to striking down a constitutional amendment. This time around, the court just might go the extra mile."

Discipline in the digital era

The digital era has brought new challenges to the world of military justice. Cellphones, webcams and social media can be morale builders or destroyers of discipline. The latest illustration comes from Paraguay, where a spoof hostage-video made by military academy cadets has gone viral and prompted an investigation that will presumably lead to disciplinary action. Details in this report from ÚltimaHora. The video was prompted by the real-life captivity of teenager Arlan Fick who was recently released by a rebel group.

Pakistan's impending 21st amendment

In the United States, the 21st Amendment to the Constitution repealed Prohibition (the 18th Amendment). In Pakistan, the 21st Amendment, which is now in the works, will have a very difference valence. AAJ News is reporting early information on the legislative path under consideration for amending the Constitution to permit the establishment of military courts to try civilians. Step 1 would be enactment of a “Constitutional (twenty-first) Amendment Bill, 2015.″ Presumably that would be followed by implementing legislation. A military officer would be substitute for a judge of the High Court. The arrangement is to last for two years (unless of course the amendment is itself amended in the future).

Was public trial objection waived in Nigerian mass court-martial?

Sebastine Hon, SAN

Sebastine Hon, a senior Nigerian lawyer, has criticized a recent mass court-martial on the ground that it was illegally closed to the public. He is quoted here as saying defense counsel failed to object:

“The trial and conviction of the 54 soldiers should be assumed not to have taken place,” Mr. Hon said.

He drew attention to Section 36(3) of the 1999 Constitution which provides that all criminal trials be conducted in public, noting that the secret trial of the suspects, amounted to gross violation of the law.

“Let it be sounded out in crystal clear terms that Section 36(3) of the 1999 Constitution has guaranteed certain inalienable rights termed fundamental rights.

“Superior courts of records in Nigeria, including the Supreme Court, have held that these rights are above the ordinary laws of the land, in this case, including military laws and rules,” Mr. Hon said.

He cited the cases of Randome-Kuti vs. Attorney-General of the Federation (1985) 2 NWLR (Pt. 6) 211 SC; WAEC vs. Adeyanju (2008) 9 NWLR (Pt. 1092) 270 at 304 SC; and Essien vs. Inyang (2012) All FWLR (Pt. 628) 951 at 967 CA, etc, to buttress his argument.

*  *  * 

Mr. Hon said the Supreme Court in a recent ruling in a case of the Nigerian Army vs. Aminu-Kano (2010) All FWLR (Pt. 528) 1805 at 1832 SC, had held that the fundamental rights provisions of the Constitution apply to all Nigerians, including members of the Armed Forces.

He said, “It is in the light of the above that I submit on most firm grounds that the secret trial and conviction of 54 soldiers by a military tribunal is null and void on the ground that it infringes on Section 36(3) of the Constitution.

“Be it noted that this Subsection has specifically outlawed secret criminal trials by a “court or tribunal.” A military tribunal, without any iota of doubt, is covered by these provisions.”

Mr. Hon, however, argued that the failure of the defence counsel, Femi Falana, to raise an objection against the secret trial by the military tribunal has robbed him of the opportunity to do so at the appellate court.

He expressed optimism that the trial, conviction and sentence of the 54 soldiers will be voided at the Court of Appeal.

Supreme Court review sought in Pakistani capital court-martial

A petition has been filed with the Supreme Court of Pakistan challenging the Lahore High Court's December 24, 2014 order vacating the stay of execution of a man convicted by court-martial. The petitioner (the man's mother) has thus far been unable to obtain the documents needed to prepare the case. According to this article in the Express Tribune:

The petitioner said that on December 24, 2014, the Deputy Attorney General apprised LHC that the production of charge sheet, trial proceedings and the judgment of court of appeals was against public interest.

Instead, the LHC-Rawalpindi bench had dismissed the petition since it was non-maintainable under Article 199(3) of the Constitution being an army matter, which is altogether erroneous view. The act of military authorities was utter violation of Articles 2-A, 9, 10, 10-A, 13 & 19-A of the Constitution.

“It is quite evident that conviction of the son of petitioner is unlawful, therefore, indulgence of this court is necessary and expedite under Article 185-3 of the constitution,” claimed the petitioner.

It is also stated in the petition that the superior courts of the country, through various judgments, set aside the conviction awarded by the trial court on a sole ground that the accused was either not provided an opportunity to be defended by a counsel partly or as a whole.

“There are four types of courts as per Pakistan army act, FGCM, can only be convened when an active service, therefore, the convening of FGCM and trial of the son of the petitioner falls within the category of coram non judice and without justification,” read the petition.

The petitioner said that there is no independent judicial review of any order of the military tribunal, adding that the decision of military tribunal is to be challenged before another similarly constituted tribunal.

The petition further contended that the LHC December 24 order is not sustainable under the law.

Quaere: the stay of execution having been lifted, will the government carry out the death sentence while the appeal to the Supreme Court is pending? Withholding the charge sheet, record of trial and judgment of the military court of appeal seems indefensible.

Pakistan's "judicial failure"

"If we were to dispassionately assess the reasons behind the prevalent national consensus of establishing military courts in Pakistan, it would be discovered that the real cause for this demand does not stem from the scourge of terrorism (which is usually dealt with by Anti-Terrorist Courts). Instead, it is the absolute inability and decadence of our constitutional courts to perform their requisite functions in regards to terrorism that has compelled our nation to resort to this extreme measure."

Lahore attorney Saad Rasool

writing on Judicial Failure in The Nation

Pesky precedents in Pakistan

Apparently concerned that the Supreme Court of Pakistan's case law will be an impediment to creation of military courts to try civilians under the National Action Plan, supporters of the idea have come up with an ingenious, procrustean solution: simply ask the Supreme Court preemptively to reconsider a case that disallowed an earlier government's attempt to introduce military courts. Details appear in this article in The Dawn. The landmark case in question is Sh. Liaquat Hussain v. Federation of Pakistan, PLD 1999 SC 504, excerpts from which appear here and here. According to The Dawn:

In a petition filed before the apex court on Saturday, regular litigant and [political party] Awami Himayat Tehreek Chairman Maulvi Iqbal Haider has asked the court to empower the government – in view of the prevailing circumstances – to make laws or promulgate ordinances to establish military courts in order to help civil authorities curb terrorism and militancy.

The petitioner argued that there was nothing in Articles 4 through 25 of the constitution – which relate to fundamental rights – that prohibits the setting up of military courts to try terrorists, if it helped the government to protect its citizens.

It would appear that a constitutional crisis is brewing as fallout of the Peshawar school massacre. 

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.

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?

Badar Iqbal Chaudhary on military courts

Badar Iqbal Chaudhary

Debate continues in Pakistan even though the political parties are mostly on board for military courts. Badar Iqbal Chaudhary has written a smart op-ed for The Dawn citing serious flaws in the military court system:

It is no doubt one of the speediest trial systems, but it comes with many caveats:

1

The decision makers are not experts in fine points of law. These could be officers whose education may entirely have been in mathematics and biology, deciding upon the life of another without understanding what equity demands. The Act does allow for a Judge Advocate's presence — an expert from Army's legal branch — to assist in trial, but it is not necessitated except in the case of the highest level (General martial court).

2 

The system is not governed by precedence. A new panel is formed for each case, and the absence of procedure and precedence allows for decisions to be reached on an equitable basis. Although allowing greater room for manoeuvre to the courts, equity is a questionable yardstick, after all, coming from non-experts; and being a subjective value, how could the fairness and certainty be quantified, and ensured? 

3 

This system is not subject to appeals in the civilian courts, even at the supreme court level. Although a person convicted in military courts may be re-trialed in the civilian courts (as per Article 96 of the Army Act 1952), it goes against the fundamental right of protection against double jeopardy (being prosecuted twice for the same crime — Article 13 of the constitution), despite overriding the section 403 of Criminal procedure code, which too outlaws double punishment.

Admittedly, desperate times require desperate measures, but couldn't the said measures have been novel and revolutionary, instead of solutions reminiscent of the much criticised Frontier Crimes Regulation (FCR)? And who is to say this amendment won't be challenged in the Supreme Court for being in contradiction with fundamental rights? Lastly, why couldn't the government have reformed the civilian Anti-terrorism system functioning since 1997 instead?

The good news, if there is any, is that voices can be and are being raised in opposition to the military courts aspect of the post-Peshawar-massacre response. The Supreme Court of Pakistan has stepped in in the past to protect democracy. Will it again? Can it do so if the Constitution is amended?

Pakistan's military courts proposal

In the wake of the Peshawar school massacre, Pakistan's unfortunate lurch towards military courts continues. Two stories have appeared overnight that readers may find of interest. The first, in the estimable The Dawn, quotes the railways minister, Khawaja Saad Rafique:

“Summary trial courts to be set up now and the ones formed by military dictators in the past have no comparison and are poles apart,” the minister said while talking to reporters after inaugurating the refurbished bogies of Hazara Express here on Thursday.

“Earlier summary trials were imposed by military regimes. But now such courts will be formed by political leadership of the country with a consensus (among parliamentary parties) to enable the government to take decisive action against terrorism and extremism of all kinds,” he said.

In an extraordinary situation, he said, the Constitution allowed setting up of such courts for a certain period. “We are at war with terrorists. In such an extraordinary situation, military courts were set up even in the US,” Mr Rafique said. [Emphasis added.]

Ouch.

The second article, in The News International, reports on pushback and points out that the new courts will not be subject to oversight by the civilians courts:

Senator SM Zafar, while talking to The News, confirmed that no appeal whatsoever could be filed before any civilian court, including any high courts or the Supreme Court, in cases tried by the military courts.

“If you will appoint any executive officer, civil or military, on a judicial position, it will be simply against the independence of the judiciary,” said top lawyer Khawaja Haris. “The independence of the judiciary is an integral part of the basic structure of Pakistan’s Constitution and neither can any amendment to the Constitution nor any other legislation be done against any element of the basic structure of the Constitution,” he said.

“Any possibility of setting up such a special court was eliminated from the Constitution through the 18th Amendment, and now doing anything like that will be tantamount to reversing constitutional reforms. The government is admitting its failure and incompetence to make any proper strategy and to counter terrorism and now wants to use the crutches of military courts, which can only disturb the institution’s fight against terror, make it controversial. But setting up such courts will also be counterproductive by all means,” said former senior judge of the Supreme Court, former chief justice of the Sindh High Court, Justice Wajihuddin Ahmad.

“The only way forward could be to set up a new anti-terrorism court comprising good judges, making arrangements for speedy but fair trial and also setting up special benches in the apex court,” he said.

Whatever one may think of the United States military commissions being conducted at Guantanamo Bay, Cuba, their judgments are subject to appellate review by the civilian United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United States under § 950g of the Military Commissions Act of 2009.

New data on sexual assault in the U.S. armed forces

Sen. Kerstin Gillibrand (D.-NY)

The Washington Post is running charts showing a sharp increase in sexual assaults in the U.S. armed forces. "The numbers have taken a dramatic upswing in the past two fiscal years. But advocates and the Pentagon warn that the number of victims is probably higher because women often don't report assaults."

Perhaps these data will cause some (5+) of the 45 Senators who voted against cloture on Sen. Kerstin Gillibrand's Military Justice Improvement Act earlier this year to have second thoughts.

Pakistan watch

The news has been coming hot and heavy out of Pakistan concerning the military courts that seem to be a done deal. Here are two worthwhile reports from The Dawn:

A parallel justice system?:

[Retired JAG] Col [Inamur] Rahim was also of the view that military courts, which are established in specific Corps Headquarters, disturb the routine functioning of the corps.

“A single military court consists of a presiding officer - an officer of Lt-Col rank - and two members who are usually majors. Then it has a Judge Advocate General (JAG) who too is an officer of Lt-Col rank. In addition, the prosecutor and the defending officers are also at least of major rank. In addition, it also needs administrative staff which included officers of Lt-Col, majors, captains and their subordinates,” he pointed out.

He argued that when all these senior personnel were busy in running a court, their other work suffered.

Another expert with a similar experience is retired Colonel Malik Mohammad Akram who was also of the opinion that military courts are meant to “maintain discipline” within the force.

“On the other hand, civilian courts that deal with criminal cases are aimed at maintaining law and order in the society. The presiding officer of the military court may not be well versed with the legal practice,” he said.

He suggested that instead of establishing the military courts, the government could enhance the number of ATCs and increase the number of judges to preside over them.

Amending the Constitution: precedents recalled:

“We have a long history of military courts in Pakistan which have never delivered,” Mr [Hamid] Khan regretted, adding that the decision taken by the political leadership seems to have been made under duress.

Military trial for Saudi women drivers

Two Saudi women are being charged in military court for driving. News report (in Spanish) via EFE.

More death sentences in Nigeria, with a twist

Four more soldiers have been sentenced to death by firing squad in Nigeria. This time there is an interesting twist: they pleaded double jeopardy on the ground that they had previously been convicted by their commanding officer at a summary trial. Premium Times has details here:

According to a source familiar with the trial, “the allegation against the soldiers was that they asked “inciting questions” from their Commanding Officer of 81 Battalion when he addressed them on September 14, 2013.

“The questions pertained to the corpses of some of their colleagues brought to the camp after they were killed by the Boko Haram terrorists due to lack of weapons. The charge of mutiny was that the 5 soldiers “incited soldiers of 81 Bn to mutiny against the authority of 7 Division of Nigerian Army”.

They pleaded double jeopardy that they had been tried summarily by their commanding officer, convicted and sentenced and that they had served the punishment, our source said.

“The record of proceedings of the earlier trial was tendered and admitted in evidence by the court-martial. But the court-martial headed by Brig-General M.S Yusuf did not consider the defence of the soldiers,” the source added.

The dual jeopardy provision at issue is s. 171, Armed Forces Act. 

Merry Christmas, 2014

Tragic accident highlights illegal orders issue in Singapore

An interesting case, reported here, has come up in Singapore. At issue is what should be done when a senior NCO orders a conscript to drive a vehicle for which he lacks the required license, leading to an accident in which another soldier dies and two are seriously injured. The driver was tried and sentenced to 10 days' detention. A district judge observed: "Perhaps one positive outcome of this case is that national servicemen now know that they do not need to obey a manifestly illegal or unlawful order." The master sergeant's case comes up next.

Jonathan Yee writes in NSM Singapore:

Let’s take a moment to appreciate the collective roar of approval of NSFs around the island.

The culture of SAF “Don’t think, just do” – how important is it?

As a rule of thumb, NSFs [national servicemen] are told simply to follow what they are told to do and quickly – so quickly that your brain barely registers what you need to do.

While that sort of decisiveness can be crucial in war and can make the difference between life and death, discretion has to be exercised when NSFs receives an order which is unlawful, or worse, life-threatening.

To outright disobey your superior might not be possible even if the order given is illegal, as the fear of making a mistake is also heavily drilled into the heads of NSFs.

Because of the SAF culture of ‘don’t think, just do’, the message that NSFs should not carry out unlawful orders even if given by a superior, is even more important in preventing more lost lives due to negligence or disregard for rules and laws.

And that’s the message you should be taking from this article, not “eh, this article said I don’t need to obey my superior!”

One might quarrel with the phrase "unlawful, or worse, life-threatening." It is not difficult to imagine an order that is both life-threatening and perfectly lawful. E.g., "Charge!" Note also that the driver was not acquitted; he simply got a lenient sentence.

Thanks to Jon Ong for the thought-provoking link.

Welcome to Tunis

It's déjà vu all over again. Tunisian authorities have sent a blogger arriving from Paris to military court on charges of insulting the army. Details here.

Postscript: The blogger was sentenced in absentia in November to three years in prison, according to the military prosecutor. Phew. That explains everything.

Amazing caseload in Nigeria

The Nation reports that some 300 officers and enlisted members of the Nigerian Army are facing courts-martial for refusing to go into battle against Boko Haram. A highly-placed anonymous source said:

“The military has addressed all issues and even provided these officers and men with sophisticated equipment but they refused to fight in some places.

“They had allegedly failed to perform their duties in violation of sections 60, 61 and 62. No matter the situation, the law has to take its course. The military is not being wicked as being insinuated.”

The Nation's account helpfully reproduces pertinent statutory provisions:

Section 60 says:  “(1) A person subject to service law under this Act who-- 

(a) deserts; or 

(b) persuades or procures any other person subject to service law under this Act to desert, 

is guilty of desertion and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

(2) A person convicted of an offence under subsection (1) of this section shall only be liable to be imprisoned for not more than two years if--

(a) where the offence is against paragraph (a) of that subsection, he was on active service or under orders for active service at the time when it was committed; or

(b) where the offence is against paragraph (b) of that subsection, the person in relation to whom it was committed was on active service or under orders for active service at that time.

Section 61 deals with “assisting and concealing desertion and absence without leave.”

It reads: “A person subject to service law under this Act who--

(a) knowingly assists any other person subject to service law under this Act to desert or absent himself without leave; or 

(b) knowing that a person subject to service law under this Act has deserted or absented himself without leave, or is attempting to desert or absent himself without leave, fails to report that fact without delay, or fails to take any step in his power to cause that person to be apprehended, 

is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.

Section 62 borders on “failure to perform military duties.”

It says: “A person subject to service law under this Act who- 

(a) without reasonable excuse, fails to attend for a parade or other duty of any description or leaves parade or duty before he is permitted to do so; or 

(b) neglects to perform, or negligently performs, a duty of any description, 

is guilty of an offence under this section and liable, on conviction by a court-martial, to imprisonment for a term not exceeding two years or any less punishment provided by this Act.”

HRW calls for joint investigation in Indonesia

Human Rights Watch has called for a joint military/police/human rights commission investigation into an incident in which Indonesian soldiers killed civilians in Papua. Their press statement observes:

“The Papua inquiry has been stymied because civilian investigators can’t interview the soldiers who were at the scene,” said Phelim Kine, deputy Asia director. “A joint probe with police, military, and human rights investigators is crucial to ensure that all information is collected and that the findings will be taken seriously.”

The 1997 Law on Military Courts provides that only military investigators, prosecutors, and judges have jurisdiction to investigate and prosecute crimes by Indonesian military personnel. The system lacks transparency, independence, and impartiality, and has long failed to properly investigate and prosecute alleged serious human rights abuses by members of the military. In a number of cases over the past decade, the military justice system has dispensed extremely lenient sentences to soldiers convicted of serious human rights abuses against civilians.

Hats off to Human Rights Watch for indefatigably monitoring these and similar developments.

Lahore High Court vacates stay of executions

The Rawalpindi Bench of the Lahore High Court has vacated the stay it previously issued with respect to the execution of five men who were convicted in a military court. The Daily Times account reports:

"Deputy Attorney General (DAG) Sajid Bhatti appeared in the court and took the plea that the accused were tried in a military court for killing seven security personnel. The court had awarded death penalty to five accused in February 2014 and they challenged their conviction as per law.

"However, their petition was dismissed on June 10, 2014. Later, their death warrant was issued in conformity with the relevant law. The accused had killed army officers therefore, military court had awarded death sentence to them. He further said that the accused persons sent mercy appeal to army chief which was rejected by the latter. No ruling can be given against the orders of military court as per law. Filing of appeal in civil court in connection with their trial was illegal. Therefore, the court should have dismissed their petitions in the beginning. The five accused persons are now in Kot Lakhpat Jail, Lahore, and are awaiting hanging. Therefore, the stay order issued against their conviction be dismissed. The court while accepting federation appeal plea vacated its own stay order and restored the death penalty of all the five accused." [Emphasis added.]

If any reader locates a copy of the judgment, please post it as a comment or email it to the editor at Yale Law School. It would seem that, unless the Supreme Court steps in, democracy and the rule of law will become collateral damage from the Peshawar school massacre.

Pakistan parties agree on two years of military courts for quick trials

After an 11-hour meeting, Pakistani political leaders have resolved to amend the Constitution to permit military courts to try civilian militants for a two-year period. According to this report:

"[The] Sharif Government wanted to set up military courts for speedy trial[s] as [the] traditional justice system is corrupt and slow and has failed to deliver."

One wonders why fixing the civilian courts was not an obvious and preferable solution. Pakistan earns a George III prize for this retrograde move.

Postscript that should disturb American readers: Here's an excerpt from a pt article that details the discussions and negotiations:

During the meeting, PML-Q Secretary-General Mushahid Hussain Sayed told the premier that his party would stand behind him. “Mr Prime Minister, establish military courts. It is time to act. The US (government) also established these courts,” the source quoted Hussain as saying. [Emphasis added.]

Here we go again . . . military justice as second bite at the apple

Your editor served in the U.S. Coast Guard for three years, seven months, and eight days. He loves the Coast Guard (see below). But he does not love it when his old outfit prosecutes members for, among other things, essentially the same (apparently off-base) crimes of which they have been acquitted in state court. Click here for a case in point. The headline in the Alaska Dispatch News reads: "Man acquitted of child sex abuse after Kenai trial faces military charges."

It is respectfully submitted that the Framers did not intend that Congress's power to "makes Rules for the Government and Regulation of the land and naval Forces" (U.S. Const. art. I, § 8, cl. 14) would be used to create a backup system to prosecute military personnel who have been acquitted in local courts. Here endeth the rant.

Officer Candidate School 1969

Waterboarding = water cure: Sen. Whitehouse was not making it up

Sen. Sheldon Whitehouse (D.-RI)

The Providence Journal has this PolitiFact article checking the accuracy of Sen. Sheldon Whitehouse's assertion that the United States has prosecuted military personnel for waterboarding. BLUF: he was right. Details:

There's little doubt that what is now called waterboarding -- then known as water torture or by the odd name of the "water cure" -- was used by Americans in the Philippines after the U.S. gained colonial authority over the islands from the Spanish in 1898 under the terms of the treaty that ended the Spanish-American War.

Filipinos had been recruited to help fight the Spanish but when the Spanish were vanquished, the Filipinos tried to gain their independence. The resulting guerilla war had some things in common with the U.S. interventions in Iraq and Afghanistan, complete with boobytraps, suspicions that all Filipinos were guerrilla fighters, and the depiction of the guerillas as treacherous fanatics.

Most accounts we found report that an infantry captain named Edwin F. Glenn was found guilty of engaging in water torture during the war.

Glenn was a judge advocate at the time he was involved in waterboarding. By the time he was court-martialed, he had been promoted to major. He was specifically charged with administering the "water cure" to a prominent Philippine resident named Tobeniano Ealdama, whom he suspected of collaborating with insurgents.

Proposal to allow military courts to try civilians remains in dispute in Pakistan

“To try civilians in military courts is a failure of the civilian judicial system and a wrong message will also go to our judiciary.”

Anonymous source describing
inconclusive deliberations of Pakistani

 National Action Plan Committee

reported here by The Express Tribune

The Daily Times reports that even without legislation, the government is taking steps towards the creation of three military courts to handle terrorism cases in the Federally Administered Tribal Areas (FATA): "It is worth mentioning that there is no need of legislation for the establishment of courts in FATA and the president can just issue order for this purpose."

The Year in Global Military Justice Reform

As the calendar year ends (and Global Military Justice Reform approaches its first anniversary), it's time to take stock of 2014:

It's a mixed bag. On the one hand, a number of countries have embraced reactionary measures such as subjecting civilians to trial by court-martial or have failed to take decisive action to reform their systems, continuing to dither for a host of reasons. Other countries have passed reform legislation but failed to put it into effect in a timely manner. Some countries have enacted measures to deal with specific types of military criminality but failed to grasp the nettle of structural reform. Some have been slow to impose military death sentences, while others seem to hand them out like party favors. One thing that stands out in a few countries is the stately pace of the administration of military justice, despite the common belief that it is a virtue of military justice that it is swifter than civilian justice. If there is one overall good-news story, it is that voices of reform are out there and working to make themselves heard. Conferences have been held or are on the drawing board around the world, and the news media more seem as alert than ever to developments in the field. International organizations such as the UN Office of the High Commissioner for Human Rights as well as regional human rights bodies and national and international NGOs are also on the case. So overall, 2014 counts as a good year.

May I have the envelope please?

Worst Development of the Year: Expansion of Egyptian military court jurisdiction over civilians. Over a thousand civilians have been referred for military trial, including some whose alleged offenses occurred before the decree. For this, Egypt receives the George III Prize for Most Retrograde Development.

Best Development of the Year: Military Justice Improvement Act gaining 55 votes in the U.S. Senate. While 55 is not 60, Sen. Kirsten Gillibrand (D.-NY) still receives the S.T. Ansell Award for Best Reform [Effort]. There's always next year.

Brig. Gen. S.T. Ansell

Most Opaque Military Justice System: China. Hands down (although North Korea was a contender until the system crashed).

Best Post(s): Prof. Steve Vladeck's monumental series on Military Courts and Article III. Thanks again, Steve.

Prof. Steve Vladeck

Best Comment: We've been blessed with a number of insightful comments, many of them from such regulars as Justice Létourneau, Cols. Drapeau and Sullivan, Cdr. Cave, Maj. Singh, Brig. Paphiti, Christina Cerna, and Sinologist-in-Chief Susan Finder, to name a few. It's impossible to choose, so everyone who commented is hereby deemed to have been mentioned in dispatches. We've also received a few anonymous comments that were worthwhile, but these are not posted as a matter of editorial policy. If you were one of those shy commenters, "come out, come out, wherever you are."

Most-Blogged-About Country: The United States. Your editor hasn't run all the numbers (we've had over 1000 posts), but there have been many about developments in Canada, the UK, Egypt, Nigeria, India, Pakistan, and Malaysia. On the whole, and considering the language limitations, the "Global" in Global Military Justice Reform is a reality.

Most Appealing Accused (also Best Illustration): Major Zaidi Ahmad, Royal Malaysian Air Force (accused in The Indelible Indelible Ink Case).

Major Zaidi Ahmad, RMAF

Do we need to add another year-end category? Please tell us (with your nominee), using the Comments feature (and your real name).

"Nigerian military to court-martial 118 more soldiers"

So says Premium Times in this article.

Who was it that said "The hangings [beatings/floggings] will continue until morale improves"?

Court-martial "gale" reaches upper ranks in Nigeria

Premium Times reports that a brigadier general and 14 other senior Nigerian Army officers are going to be tried by court-martial, following a spate of courts involving enlisted personnel:

"It is not clear what the officers are being charged for as they are yet to be formally arraigned but our sources say it might be related to negligence in the army's campaign against the terrorist group Boko Haram in the North East of the country.

"The court-martial of these top officers marks a shift from recent trials in the military that have primarily involved non-commissioned officers."

To be or not to be: military trials for civilians in Pakistan

A battle seems to be shaping up over whether to introduce military trials for civilians in Pakistan in the wake of the Peshawar school massacre. The Nation reports that the parliamentary All-Parties Conference's Action Plan Committee has voted in favor of doing so. Earlier accounts indicated that the Army had decided such trials were a bad idea. Stay tuned.