Transparency and military justice in Gambia

Not a pretty picture in Gambia, where the media have raised questions about access to an ongoing court-martial. The armed forces spokesman's response: I've been out of the country:

Lt. Malick Sanyang, the PRO of Gambia Armed Forces was first asked to respond to the letter sent to the defence headquarters from Foroyaa Newspaper that precisely asked for the media to be allowed access to cover the proceedings of the court martial which should under normal circumstances be an open court based on the dictates of both the Constitution and Armed Forces Act. In response, the PRO said it is news to him that there was a letter concerning such sent to the headquarters as he had just returned from Mali few days before independence. 

"I have been to Mali and my arrival coincided with the Golden Jubilee celebration. I have been busy with the independence activities since then. Besides, we were also working towards the parade and departure of the 18th contingent of the Gambia Armed Forces who had to leave for Darfur and finally they were paraded yesterday (Monday). This office is grappling with lots of issues that need to be done and I wasn't aware of your letter here," he explained.

When he was asked how soon he could do something about it, "Well again I cannot assure you for the same reason. It has to be considered by many people before I can assure. Telling you anything here will be my opinion and the system is not working by my opinion," said Army PRO Sanyang. 

Foroyaa: "Now could you please tell me the charges preferred against the accused persons and who they are?" 

PRO: "Well, I still don't know that because I told you that I have travelled." However, he concluded that as PRO he has been a friend with the media and assured that he will continue be working with them while commending their efforts.

Great way to look like you are batting 1.000

A retired Navy JAG Corps lawyer, Commander Wayne L. Johnson, has written an interesting letter to Navy Times about a peculiarity in the U.S. Coast Guard's reporting of trial results: just include the convictions, never mind the acquittals:

As I was reading the results of Coast Guard courts-martial, I noticed something interesting about how the service provides the information to the media ["Coast Guard renders court-martial verdicts in late 2014," Jan. 27]. 

The other branches of the military release all of their court-martial results, including those where the verdict was not guilty, while the Coast Guard, as a matter of policy, provides only the convictions. To the uninformed it would appear the USCG has a 100 percent conviction rate, which of course is not true. 

Why does the Coast Guard not provide all the court-martial verdicts? The other services do this, but they do not release the names of those found not guilty, only the guilty. 

If you go back over the past two years, about a third of the results reported by the other services are not guilty — particularly in cases involving things like rape and indecent assault. 

The public should be told the whole story in that regard and not just be given this limited view by Coast Guard leaders. I imagine the senior officials at the USCG are only giving the conviction results to send a slanted, untrue message that everyone charged is being found guilty. 

It is also interesting that the Coast Guard does not provide the names of those convicted even though, unlike Article 15 or administrative discharges, the names of those convicted at a court-martial (at least general and special courts-martial) are public records. In fact, I do not recall seeing any of the other services posting summary court-martial results, only general and special. 

One would think the services would be more uniform as to what results they do and do not release. It is my belief the Coast Guard should adopt what its sister services in the Department of Defense are releasing.

Seems like a fair point. 

Now you see it . . .

Responding with alacrity to an order abating the 9/11 military commissions case and a pending hearing in the USS Cole bombing case, the Defense Department has rescinded an order that required military commission military judges to remain at Guantánamo Bay until their cases were completed. The order had been found to give rise to at least the appearance of unlawful influence. The Miami Herald's indefatigable Carol Rosenberg has the story.

Why did the President of Pakistan amend the new military courts provisions of the Army Act by means of a mere ordinance?

Dawn has the answer, in this February 26 editorial:

IN a strange, mostly unexplained twist, President Mamnoon Hussain has promulgated an ordinance further revising the recently amended Army Act to ostensibly aid the functioning of military courts by allowing for trials in camera, ie without the presence of the public or the media, and over video link if necessary.

The idea, according to a special assistant of the prime minister who handles legal matters, is to enhance security for presiding officers, military prosecutors, witnesses and defence lawyers by shielding their identity from the public and the media.

While that may seem like a sensible idea — and only at first blush — it is quite incredible that already the law dealing with military courts is being amended in such a clandestine manner and without any debate.

The need for a presidential ordinance — a legislative tool that has been used in the past to undermine parliamentary democracy — points to either one of two problems. 

Military courts were either mooted in haste and only now are the real-world impediments to their functioning becoming apparent, hence the need to tweak the law.

Or the government and the military which demanded such courts do not feel obliged to maintain any level of transparency in the operation of these courts and are now confident enough to introduce changes that essentially seal off their functioning from any kind of public and media scrutiny.

OHCHR: Colombia bill does not meet international requirements

Tom Howland, the representative of the UN High Commissioner for Human Rights in Bogota, has stated that the government-sponsored bill currently before the Colombian Congress does not meet the country's international legal obligations. According to this report, he urged that Colombia confront past offenses in a direct manner.

Fraying civil-military judicial relations in Pakistan?

There's an interesting additional subplot to the controversy surrounding Pakistan's new military courts. So far it has seemed that on the one hand, the government has moved aggressively to present the Supreme Court (before which 13 Constitutional Petitions challenging the 21st Amendment are pending) with a fait accompli by a show of activity towards getting the new courts up and running, while at the same time retarding the Supreme Court's process by pretending not to have realized that it had been ordered to submit a concise statement of its position to the Court, while on the other hand the civilian anti-terror courts have made a show of activity to move some cases ahead.

The latest wrinkle in this arm-wrestling match seems to be that the High Courts have refused to make their judges available to serve as magistrates for the taking of statements in military court cases. As background:

The home department made a reference to a letter received from the Pakistan Army’s 5-Core Karachi Office, dated February 15, wherein it was stated that military courts have been established in light of the recent constitutional amendments for trial of accused persons, who were involved in heinous offences. It was further said that prior to the commencement of the trial, some of the accused wanted to voluntarily record their confessional statements under Section 164 of the Criminal Procedure Code (CrPC). The home department was asked to ensure nomination of judicial magistrates to record the statements of the accused.

According to this article (quoting an unnamed judicial official), “All the high courts raised similar objections to the requests, asking the home departments to approach the relevant district and sessions judges to name their subordinate judicial magistrates for the military courts to record the confessional statements of the accused persons.” The civilian courts are not going quietly.

Closed hearing at Guantánamo

Today a military judge at Guantánamo conducted a closed hearing on issues related to the recent rule change requiring military commission judges to remain at the remote naval station until trials are finished. It is baffling why a hearing on this issue, as to which another judge has already entered an order abating the 9/11 case proceedings, would be conducted behind closed doors. This is not a good way to foster public confidence in the administration of justice.

European Union Court of Justice decision on asylum for third-country military deserters

The Court of Justice of the European Union, based in Luxembourg, today handed down its decision in Shepherd v. Germany, No. C-472/13. At issue was whether a deserter from the U.S. Army was entitled to asylum in Germany because he did not believe he could participate any further in a war he considered unlawful and in war crimes that he believed were committed in Iraq. The court's judgment is available here. Following is the press release issued by the court ("note" and emphasis in original):

In August 2008, an American soldier, Andre Shepherd, sought asylum in Germany. He had left his unit, which had been stationed in Germany since April 2007, after receiving an order to return to Iraq. Mr Shepherd believed that he should no longer participate in a war he considered unlawful and in the war crimes that were, in his view, committed in Iraq. During his first tour of duty in Iraq, near Tikrit, between September 2004 and February 2005, he had not participated directly in either military action or combat operations, but had worked as a helicopter maintenance mechanic. Upon his return from that tour, he re-enlisted in the United States army, in which he had initially enlisted in December 2003 for a period of 15 months. In support of his asylum request, Mr Shepherd claims that, as a result of his desertion, he is at risk of criminal prosecution. Moreover, since desertion is a serious offence in the USA, it affects his life by putting him at risk of social ostracism in his country.

His asylum application having been rejected by the Bundesamt für Migration und Flüchtlinge (German Federal Office for Migration and Refugees), Mr Shepherd asked the Bayrisches Verwaltungsgericht München (Administrative Court, Munich) to annul that decision and to order that he be granted refugee status. That court asks the Court of Justice to interpret the European Directive on refugee status.1

According to that directive, a third-country national who has a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group may, under certain conditions, be granted refugee status. The directive sets out, inter alia, the factors which support a finding that acts constitute acts of persecution.

Thus, according to the directive, an act of persecution can, inter alia, take the form of ‘prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes’.2

In today’s judgment, the Court holds that

•  the protection granted in such a situation covers all military personnel, including logistical or support personnel;  

• it concerns the situation in which the military service performed would itself include, in a particular conflict, the commission of war crimes, including situations in which the asylum seeker would participate only indirectly in the commission of such crimes if it is reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes; 

• it does not exclusively concern situations in which it is established that war crimes have already been committed or are such as to fall within the scope of the International Criminal Court’s jurisdiction, but also those in which the asylum seeker can establish that it is highly likely that such crimes will be committed; 

• the factual assessment which it is for the national authorities alone to carry out, under the supervision of the courts, in order to determine the situation of the military service concerned, must be based on a body of evidence capable of establishing, in view of all the circumstances of the case (particularly those concerning the relevant facts as they relate to the country of origin at the time of taking a decision on the application and to the individual position and personal circumstances of the applicant), that the situation in question makes it credible that the alleged war crimes would be committed; 

• the possibility that military intervention was engaged upon pursuant to a mandate of the United Nations Security Council or on the basis of a consensus on the part of the international community or that the State or States conducting the operations prosecute war crimes are circumstances which have to be taken into account3 in the assessment that must be carried out by the national authorities;  

• the refusal to perform military service must constitute the only means by which the asylum seeker could avoid participating in the alleged war crimes4 and, consequently, if he did not avail himself of a procedure for obtaining conscientious objector status, any protection under Article 9(2)(e) of the directive is excluded, unless he proves that no procedure of that nature would have been available to him in his specific situation.

In the event that it is not established that the military service Mr Shepherd refused to perform would have included the commission of war crimes, the Verwaltungsgericht also asks the Court to clarify the conditions giving rise to the protection provided for in the directive in two other situations. According to the directive, acts of persecution may also exist where the public authorities take discriminatory or disproportionate measures.5

As regards those two situations, the Court holds that, in circumstances such as those in the present case, it does not appear that the measures incurred by a soldier because of his refusal to perform military service, namely the imposition of a prison sentence6 or discharge from the army, may be considered, having regard to the legitimate exercise, by that State, of its right to maintain an armed force, so disproportionate or discriminatory as to amount to acts of persecution for the purpose of the directive. It is, however, for the national authorities to ascertain whether that is indeed the case.

What does China's newly-issued 4th Five-Year Court Reform Plan mean for the military courts?

On February 26, 2015, two important documents with implications for Chinese military courts were released:

• The Supreme People's Court 4th Five-Year Plan (the Plan), entitled "Opinion on Comprehensively Reforming the People's Court" (full text released). The text and translation can be found here and Wall Street Journal analysis is available here. 

• The Central Military Commission's (CMC's) Decision Concerning Deeply Promoting Administering the Military According to Law and Strictly Administering the Military in the New Situation. Only a summary has been released, but it is stated that it was approved by Xi Jinping. The summary does not specifically mention military courts but they are likely addressed in the document. 

Item 9 (of 65) of the Plan addresses the military justice system, calling for improvement of the military judicial system under unified leadership, which protects national defense interests and the rights of military personnel and "strikes" at crime. Does "unified leadership" mean consolidating military courts in one institution under the CMC, as Professor Zhang Jiantian advocated in an article published earlier this month?

The Plan calls for major improvements in the criminal justice system, including better protection of criminal defendants, as well as significant changes to the trial process, as well internal operations of the courts. The extent to which these reforms aimed at the civilian court system can be implemented in the military courts remain to be seen. We await authoritative commentary on what can be expected, possibly by Professor Zhang.

Guantánamo 9/11 cases on hold

In a startling ruling, Military Judge James L. Pohl ordered the abatement of the 9/11 military commission proceedings until proper authority rescinds a rule change requiring judges to remain at Guantánamo until trials are complete. "If such rescission is not done in a timely manner, the Commission will consider other remedies." The basis for the abatement order is Judge Pohl's determination that the actions of the Deputy Secretary of Defense, "on the recommendations of the Convening Authority, constitute, at least the appearance of, an unlawful attempt to pressure the Military Judge to accelerate the pace of litigation and an improper attempt to usurp judicial discretion; thereby, compromising the independence of the Military Judge."

Another military judge, presiding over the al-Nashiri case, has indicated that he is not bound by the abatement order and will continue the proceedings before him. He reportedly will also be looking into the UCI issue that troubled Judge Pohl.

Softball editorial on Pakistan's new military courts

The Daily Times has run a remarkably passive editorial about the controversy surrounding Pakistan's new military courts. It can be found here.

The case of the cat redux?

Lt. (Dr.) Barbara Balanzoni

Remember the case of Lieutenant (Dr.) Barbara Balanzoni, the Italian Army reserve officer who was acquitted after having been charged in connection with saving the life of a cat while on duty in Kosovo? She (the officer) is back in the news, facing prosecution on a charge of insubordination for having sharply denied a superior's claim that she had engaged in rumor-mongering.

Undisclosed HIV+ and aggravated assault

On February 23, in United States v. Gutierrez (the seventh decision of the September 2014 Term), the U.S. Court of Appeals for the Armed Forces unanimously overturned a conviction for aggravated assault where the accused failed to alert sex partners that he was HIV+:

An aggravated assault includes the element that the assault was committed with “a dangerous weapon or other means or force likely to produce death or grievous bodily harm.” Article 128(b)(1), UCMJ. Applying a plain English definition of “likely,” as well as this Court’s precedent regarding aggravated assault outside the context of HIV, testimony that the means used to commit the assault had a 1–in-500 chance of producing death or grievous bodily harm is not legally sufficient to meet the element of “likely to produce death or grievous bodily harm.” Id. As a result, we reverse Appellant’s conviction for aggravated assault, and affirm the lesser included offense (LIO) of assault consummated by battery.

Along the way, the court expressly overruled two of its own precedents and cited a decision of the Supreme Court of Canada: "R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”)." Reference to foreign law in the court's case law is exceedingly rare. Zach Spilman's analysis of the decision can be found here, on CAAFlog.

Query: How often has CAAF overruled its own precedent? Please post a comment (real names, please) if you know of examples (extra credit for an exhaustive list).

Myanmar declares military rule over Kokang region

On February 17,  Myanmar President Thein Sein granted the military unprecedented power to manage tension between government troops and ethnic Kokang rebels in the Kokang Self-Administered Zone in northeast Myanmar. President Thein Sein declared a 90-day state of emergency and imposed a military administration over the region.  A separate announcement declared that Myanmar's army chief was in full control of "rule of law and stability" in Kokang. The military administration gives the army executive and judicial powers, including the "right to summarily try suspects in a military court and potentially hand down the death penalty for a range of Penal Code offences, including high treason, libel against the government, murder, manslaughter, rape, mugging, robbery, [and] corruption."

More details on the Pakistan Supreme Court's session on February 23

Additional details have emerged about the constitutional petitions hearing that was conducted by the Supreme Court of Pakistan on Tuesday. According to this account in Pakistan Today:

Hamid Khan, Irfan Qadir, attorney general (AG) and counsels of other petitioners appeared in the court. 

Indefinitely adjourning the case hearing, the bench observed that the case regarding the 18th Amendment will be heard first followed by the 21st Constitutional. Although the dates regarding the two will be set together, they will be heard separately, the court observed, also directing the Islamabad AG to submit a written reply within three days. 

Considering that the case was being heard in Islamabad, the Sindh AG invoked Justice Anwar Zaheer Jamali’s wrath by telling him that the provincial government has submitted its response at the apex court’s Karachi registry. 

Advocate generals (AGs) of Punjab and Balochistan told the court that responses have already been filed. 

During the hearing, Advocate Hamid Khan informed the court that the federal and Khyber Pakhutnkhwa governments have only submitted their responses so far. 

While rejecting Khan’s plea seeking fixation of the case for early hearing, the court remarked, “Constitution of bench is discretionary power of the CJP. We cannot ask him to fix the case for early hearing by constituting the bench soon.” 

Justice Jamali remarked, “The matter of 18th Amendment is already pending hearing with the court. The questions of identical nature have been raised in the cases of 18th and 21st amendments. A legal and constitutional reply to these questions is required. The decision in the two matters will be rendered after their detailed hearing. However, this three-member bench is not issuing instruction of any kind and we are referring the matter to CJP for constitution of larger bench upon it.” 

Ordering the filing of a reply from Islamabad within three days, the court observed that others had filed their replies.

 In other action, President Mamnoon Hussain has issued Pakistan Army (Amendment) Ordinance, 2015, prescribing rules for the military courts. It gives military judges discretion to close trials to the public.

Tunisian military appeals court refuses to free blogger

The military court of appeals of Tunisia has refused to free Yassine Ayari, a blogger who was convicted by a military court for insulting the Army. Reporters without Frontiers has objected to Tunisia's use of a military court to prosecute a civilian. The appellate court is expected to rule on M. Ayari's appeal on March 3.

Did the federal government in Pakistan reply to constitutional petitions?

An initial report from The News Teller about today's proceedings in the Supreme Court of Pakistan in the cases challenging the 18th and 21st Amendments to the Constitution indicates that the federal authorities had not filed a response to the numerous constitutional petitions:

All provincial government submitted their responses today in Supreme Court except [the] federal government. 

During the hearing session, Justice Anwar Zaheer Jamali inquired from the AG about any response from the federal government. The AG replied that the federal government was served by a notice without any order to submit a response. 

Justice Sheikh Azmat Saeed told the AG to read out the order of the last hearing in front of the court that is clearly demanding the response from federal government. In response, the AG asked for three days time to submit a response which the court granted. 

On February 12, a three-member bench headed by Chief Justice (CJ) Nasir-ul-Mulk heard the petitions against the 21st Amendment. The federation as well as provinces had asked for time to submit responses in court. The CJ had allowed 10 days to submit responses, adjourning the case till February 24.

Other news accounts, such as this one, purport to summarize a federal response. If any reader in Pakistan can clarify matters, please post a comment (real names, please).

Postscript: It says here that the judges referred the question of convening a larger bench to the Chief Justice, who was not present.

Petitioners' positions vary in Pakistan military courts case

Dawn has an interesting short interview with Asma Jahangir, a former president of the Pakistan Supreme Court Bar Association, pointing to differences in the positions adopted by that organization and the Lahore High Court Bar Association. The former asserts that the Supreme Court can interpret the 21st Amendment (which authorizes the country's new military courts); the latter claims that the Court can invalidate the measure for contravening the Constitution's basic arrangements. Excerpts:

Q: Can the judiciary determine the salient features or basic structure of a Constitution or is it only the parliament’s purview?

A: When we discuss, in court, the basic structure or salient features of the Constitution, we give appointed judges the power to determine the nature of future constitutions. This is not the job of the courts. It becomes especially problematic, when the Constitution has been amended several times by dictators. For example, Is the Federal Shariat Court introduced by the military regime of Ziaul Haq in 1980 and subsequently protected through the eighth amendment part of the basic structure or not? Similarly, is the clause introduced by Gen Pervez Musharraf making graduation degree a prerequisite for candidates contesting the general elections, in a country where most people are not graduates, also part of the basic structure? If the answer is yes, then the Constitution requires radical changes.

Q: If the Supreme Court rules that only the judiciary can determine the basic structure of the Constitution then what would be the impact?

A: The power and authority of the parliament would be drastically curtailed. There would be a challenge to every constitutional amendment passed by the parliament in future. I understand that in countries such as India and Bangladesh, the judiciary has passed rulings regarding certain salient features of constitutions but this has also drawn a lot of criticism.

The government yesterday filed its 43-page response to the numerous pending Constitutional Petitions. The hearing is being conducted today (February 24). According to this report in Dawn:

Since Chief Justice Nasir-ul-Mulk, who was heading a three-judge bench seized with the matter, is indisposed, Justice Anwar Zaheer Jamali will preside over the court on Tuesday.

In its reply, which many believe was written more in a passionate way than in legal terms, the federal government mainly focused on the petition filed by the Lahore High Court Bar Association (LHCBA). The reply was drafted by Additional Attorney General Mohammad Waqar Rana and submitted on behalf of Attorney General Salman Aslam Butt.

It requested the apex court to dismiss the challenges because they had no merit and for the sake of all those who had sacrificed their lives in the war against terrorism, for the sake of children (who died in the Peshawar school attack) and for the sake of the future of the country. The people have spoken through their elected representatives.

The reply rejected the basic structure theory as propounded by the LHCBA in its petition and explained that courts in Pakistan had not adhered to or followed such doctrine which prevented amendments to the Constitution.

Just as there seems to have been a race by the government to get the military courts up and running before the Supreme Court could act on the 21st Amendment petitions, so too, there has been an unusual show of activity on the part of the (civilian) anti-terrorism courts, as reported here, seemingly with a view to demonstrating that there is no need for military courts.

“If the speed is maintained there will be no case left for the military courts at least in Punjab. And the efficiency will even obviate the justification of the military courts made on the belief that the civilian criminal justice system was too weak to face terrorists,” said a source in the Punjab government dealing with the terrorism cases.

According to the official figures, out of the 70 high-profile terrorism cases, the anti-terrorism courts (ATCs) have convicted the accused in 40 since the establishment of military courts in January this year.

A previous generation of military courts was invalidated by the Supreme Court in 1999.

Supreme Court of Pakistan to hear constitutional petitions on Tuesday

A supplementary cause list posted on the website of the Supreme Court of Pakistan indicates that on Tuesday, February 24, a three-judge bench (headed by the Chief Justice) will conduct a hearing in Islamabad on 13 constitutional petitions arising from the authorization of military courts under the 21st Amendment to the Constitution. The same bench will also hear several cases arising from the 18th Amendment, passed in 2010.

Major jurisdictional issue pending before Supreme Court of India

An important issue has been raised in the Supreme Court of India: can judicial review be sought in the High Courts following a ruling by the Armed Forces Tribunal, or must the case go directly from the AFT to the Supreme Court? The government argued last week that the High Courts no longer have a role, according to this article. A two-judge bench took the case under advisement on February 19. Depending on the outcome, this could either raise the stature of the AFT (and lower the workload of the High Courts) or relegate it to second-class status. The Economic Times reports:

The defence ministry told the apex court that the process should be a three-tier one — court martial, AFT, Supreme Court. Adding high courts to it makes the process longer, the ministry feels.

But the high courts of Kerala, Punjab and Haryana and Delhi have ruled that AFT is only a statutory body. Its decisions therefore will be subject to scrutiny of high courts, which are constitutional.

One thing seems clear: judicial review of military matters takes far longer than it should in India, as previous posts have noted.

As a comparative law matter, courts-martial in the United States may have as many as four stages: court-martial > service court of criminal appeals > U.S. Court of Appeals for the Armed Forces > and Supreme Court of the United States. After that, there is the possibility of collateral review by habeas corpus or under the Tucker Act or general federal question jurisdiction, followed once again by appellate review by a court of appeals and the Supreme Court, but the barriers to success on collateral review are daunting. The government does not provide free counsel for collateral attacks on courts-martial.

More details on Hicks v. U.S.

On Wednesday, the U.S. Court of Military Commission Review (CMCR) voided the terrorism conviction of David Hicks. Hicks, an Australian captured in Afghanistan in 2001, pled guilty to providing material support to terrorism. His plea bargain suspended his seven-year sentence to nine months and allowed him to return to Australia.

Hicks argued that last year's D.C. Circuit case,  Al Bahlul v. United States, was controlling.  In Al Bahlul, the D.C. Circuit ruled that crime of providing material support to terrorism could not be charged in military commissions because it was not a war crime in 2006, when Congress passed legislation authorizing military commissions in Guantánamo Bay. Hicks's case differs from Al Bahlul in that he pled guilty and waived his right to appeal his charge as part of his plea agreement.

Despite the jurisdictional bars proposed by the Military Commissions prosecutors, the CMCR found that voiding Hicks's conviction was consistent with 10 U.S.C. § 950f(d), which requires that the Court "affirm only such findings of guilty, and the sentence of guilty, and the sentence of such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved."  The CMCR noted that the differences between Al Bahlul and Hicks's case "do not dictate a different result."

Lawfare reports that the Department of Defense will not be appealing.

Hicks is the third defendant convicted in military commissions to have his conviction vacated. Salim Ahmed Hamdan's conviction was vacated in 2012 and Ali Ahmad Suliman al-Bahlul's conviction was vacated in the aforementioned 2013 case.

Prof. Jonathan Lurie on Article 32 and sexual assault

Prof. Jonathan Lurie

Professor Jonathan Lurie, nationally-recognized legal historian and author of the definitive history of the U.S. Court of Appeals for the Armed Forces, has a new article out on military justice. The Transformation of Article 32: Why and What?, 29 Wisc. J. L., Gender & Soc'y 409 (2015), is available here. His bottom line (at 420) is that although there "seems to be almost unanimous agreement" that "the system is broken," "future action is unclear. It remains apparent, however, that the military is incapable of providing consistent and effective resolution of sexual assault cases within its ranks on its own."

Transparency and professional discipline

Late last month, the Supreme Court of the United States changed its practice relating to public access to lawyer disciplinary proceedings. Here is Lyle Deniston's account of the new policy on Scotusblog:

Under the new disclosure policy, the Court’s announcement made clear, public availability of that docket will be the general rule. It will apply to documents filed after February 1. But if there are reasons to keep an attorney’s response confidential, that will be considered on a case-by-case basis, if sought by the lawyer involved. Typically, a lawyer is notified that potential disciplinary action is being considered by way of a “show cause” order, to which the lawyer then has a chance to respond and to argue against a disciplinary order.

One wonders whether the United States Court of Appeals for the Armed Forces is considering a comparable change. At the moment, all that is published are brief orders that are uninformative as to the misconduct giving rise to the disciplinary action. It is believed that disciplinary dockets are not available to the public.

By the same token, the Judge Advocates General have disciplinary authority over lawyers practicing before courts-martial, employing processes that are shrouded in secrecy, with the results available only if released by the unfortunate attorney or obtained in redacted form under the Freedom of Information Act. Short summaries are published from time to time by one branch, and at least one other has disseminated a list of disciplined attorneys -- but the details of how lawyers get into trouble should be known. Just what kinds of misconduct will lead to suspension? Are the services applying the same yardstick to these matters? (If so, why do they still have separate rules of professional conduct?)

Professional discipline, like corrections, is an understudied, important aspect of military justice. Improved transparency with respect to attorney (and, for that matter, judicial) discipline would foster greater public confidence in the administration of justice. CAAF and the TJAGs ought to be leading on this issue. Perhaps this subject should be added to the work list of the DoD General Counsel's Military Justice Review Group.

Spanish Supreme Court questions the Army's confidentiality clause

According to the Spanish Supreme Court, the Army cannot force mIlitary personnel to sign a confidentiality agreement regarding their own data nor penalize those who refuse to sign.

El País reports that on September 9^th, 2013, the Lieutenant General serving as Chief of the Armed Forces initiated a case against and penalized Lance Corporal Antonio Martínez Cánevas. He had refused to sign the confidentiality clause. The Central Military Court upheld the penalty in 2014, but L/Cpl Martínez challenged the decision. The Supreme Court has declared that the judgment and punishment are null and void.

The court reminded the parties that Armed Forces Disciplinary Regulations distinguish between orders and requirements. Hence, given that the Lance Corporal was required to sign but not ordered to do so, he cannot be reprimanded for refusing to sign.

The court also ruled that the clause the Lance Corporal was required to sign did not contemplate his right to be informed about the matters requested and was not in compliance with the Spanish Data Protection Law.

Irish court-martial discharges private

The Irish Examiner reports that a private from the Irish Defence Forces was discharged last year after being found guilty of sexual assault by a Limited Court-Martial. A Limited Court-Martial is not a standing military court; it is only convened at the direction of the Director of Military Prosecutions. Limited Courts-Martial consist of a military judge and a Court-Martial board made up of at least three members of the Defence Forces.

Two other military members came before a Limited Court-Martial last year. In one case, a private was found guilty of indiscipline and two charges of insubordination. He was sentenced to €300 in fines, a reprimand, a severe reprimand, and a week's detention without pay. The third private was found guilty of five separate charges, which included assault, false imprisonment, insubordination, and behaving in a disorderly manner while intoxicated. 

In contrast to the Limited Court-Martial, a Summary Court-Martial is a standing military court consisting of a military judge, sitting alone. While Limited Courts-Martial can only hear cases where the accused holds non-commissioned ranks, Summary Courts-Martial can hear cases against personnel of all ranks up to the rank of Commandant. Summary Courta-Martial, however, can only sentence guilty parties to a maximum of six months in prison. Limited Courts-Martial can impose sentences of two years. The Summary Court-Martial heard four cases last year. 

The last category of Courts-Martial in Ireland is the General Court-Martial. The General Court-Martial, like the Limited Court-Martial, can only be convened on the direction of the Director of Military Prosecutions. A General Court-Martial may award sentences of imprisonment, up to and including, life imprisonment.

Hicks military commission case overturned

A military appeals court on Wednesday threw out the first-ever conviction by a Guantanamo Bay military commission, finding an Australian man’s actions in Afghanistan weren’t a war crime.

The military court undid the conviction of David Hicks, an Australian who traveled to Afghanistan, trained at an al Qaeda camp and met Osama bin Laden .

Here is a link to the decision.

Self-reporting and the Fifth Amendment

U.S. Court of Appeals for the Armed Forces

The U.S. Court of Appeals for the Armed Forces heard oral argument last week in United States v. Castillo. The case concerns, among other things, whether a member of the armed forces can be compelled to report that he or she has been arrested on civilian charges. Michael Doyle of McClatchy News Service has written an informative piece on the matter here. Under current rules, naval personnel need only report the charges on which they have been arrested, and not the underlying factual details. These reports cannot now be used against them unless naval officials find them out by independent means.

However the court rules, isn't it kind of icky for military personnel to have to put themselves on report with the military for offenses that are being or have been dealt with by civilian authorities? But, you might say, the military has a non-penal interest in such matters, and might decide that the member ought to be separated administratively. After all, frequent involvement with civilian authorities is a possible ground for administrative separation. Or the military might have a need to know from the standpoint of whether the individual was trustworthy enough to have a security clearance.

Is there some other way to vindicate these service interests that doesn't rely on military personnel to be the bearer of their own bad tidings? Why not turn the reporting telescope around by enacting a federal or uniform state law that requires civilian law enforcement authorities to notify the military automatically of civilian charges against military personnel?

As for Fireman Castillo, in the end she was not convicted in civilian court on the civilian charges the Navy says she should have self-reported to it.

Ex-justice minister challenges Thai military courts

Chaturon Chaisang, a former Thai Justice Minister, has challenged the junta's military courts' exercise of jurisdiction over him. According to this account, his request to have the criminal court review the jurisdiction issue has been granted, but the military court has refused his request that the question also be referred to the Thai Constitutional Court on the ground that there is no written procedure for doing so.

"Narinphong Jinaphak, Chaturon’s lawyer, said it was up to the Criminal Court now to decide if the military court has jurisdiction over Chaturon’s case or not. The trial could resume as early as May if the Criminal Court decides that the case should be handled by the military court. Otherwise, a committee would be set up if a final decision is needed on whether the case should be transferred to the Criminal Court or not."

Somali military court sentences 4 to death

A military court in Somalia's semi-autonomous region of Puntland sentenced four men to death for their links to al-Shabab. Two other men are sentenced to life imprisonment. In 2013, Puntland military courts executed 13 individuals for links to al-Shabab and for orchestrating the assassination of a famous scholar.

In March 2014, Human Rights Watch released a report documenting violations of basic fair trial rights of defendants tried before Somali military courts.

14-year-old released from Israeli prison

Malak al-Khatib, the youngest Palestinian girl in Israeli jail, was released last week. Al-Khatib, 14 years old, was arrested for allegedly throwing rocks at Israeli soldiers and possessing a knife. She agreed to a plea bargain in Israeli military court, which required that she admit to the charges, serve two months in prison, and pay a fine of 6,000 shekels. The military court judge, Lieutenant Colonel Tirosh, wrote in his decision to convict the minor, "I find that the [plea bargain] arrangement is reasonable and deserves to be honored, taking into consideration the defendant's young age."

Kenya desertion saga continues

Last week, twenty-six Kenyan soldiers were sentenced to life imprisonment for desertion. The sentencing comes on the heels of last month's conviction of four soldiers for the same charges. The soldiers are accused of deserting the Kenya Defence Forces to work for U.S. security firms in Kuwait, Afghanistan, and Iraq in 2007 and 2008. The soldiers claim that they lawfully resigned and were thus charged under the wrong law. The soldiers' appeals will be heard by the Mombasa High Court in April. In the meantime, a defense attorney for the soldiers requested that Chief of Defence Forces General Julius Karangi produce crucial documents to the court, so that their clients can apply for bail.

Are there no functioning civilian courts in Egypt?

The news today is that ousted Egyptian President Mohamed Morsi and 198  Muslim Brotherhood leaders are to be tried in military courts (under legislation enacted after their alleged offenses). Are there no civilian courts functioning in the country in which these charges (e.g., murder and attempted murder) could be tried? The trial is set to start on February 23.

Postscript: state media are now reporting that Mr. Morsi will not be facing trial in a military court.

New work by Global Military Justice Reform contributor Nancy Sherman

Professor Nancy Sherman's forthcoming “Afterwar: Healing the Moral Wounds of Our Soldiers” is mentioned in today's insightful New York Times column by David Brooks. Prof. Sherman is a contributor to Global Military Justice Reform. Congratulations! Excerpt from Mr. Brooks's column:

Sherman, who is a philosopher at Georgetown University, emphasizes that most of the work will have to be done at the micro level — through individual conversations between veterans and civilians that go beyond the cheap grace of “thank you for your service.” The conversations have to deal with the individual facts of each case. The goal is to get veterans to adopt the stance of a friendly observer, to make clear how limited choices are when one is caught in a random, tragic situation, to arrive at catharsis and self-forgiveness about what was actually blameworthy and what wasn’t.

Decision of the Judge Advocate General ruled unlawful . . . by consent

Royal Courts of Justice

This consent order in The Queen (on the application of Deacon) v. The Judge Advocate General was posted on Twitter yesterday by Thomas Deacon, an ex-RAF serviceman who is campaigning to have his conviction for criminal damage (imposed by his commanding officer) overturned.

Details of Mr Deacon's complaints may be found here. In a nutshell, he was convicted during summary proceedings before his commanding officer for scratching a door whilst drunk. When he left the service he discovered he had been convicted of criminal damage and had a criminal record. He appealed out of time but had his appeal dismissed due to the delay. It appears to be that decision to dismiss which has now been quashed.

Summary dealing is not 'Article 6 compliant' so to maintain the position of the commanding officer at the heart of military justice and keep within the ECHR there is an automatic right in the UK to appeal to the Court Martial.

Mr Deacon will now have his case re-heard by the Court Martial and doubtless there will be press coverage and quite possibly a further appeal. This has the potential to precipitate further change in the UK Service Justice System.

Solicitors who acted for alleged victims of torture to be investigated

Sir Thayne Forbes

Some of you may have followed the Al-Sweady Enquiry into alleged torture of Iraqi detainees by members of the Argyll and Sutherland Highlanders and the Princess of Wales Royal Regiment in aftermath of the Battle of Danny Boy. For those of you who haven't followed the enquiry the BBC has an excellent summary here.

Following the conclusion of the enquiry, which found the allegations to be based on 'deliberate and baseless lies' and the 'vast majority' of allegations to be 'wholly and entirely without merit or justification' the Secretary of State for Defence, Michael Fallon, called the claims a "shameful attempt to use our legal system to attack and falsely impugn our Armed Forces." Several politicians then went on to call for sanctions against the solicitors involved, Leigh Day.

Such strong words, which may not be surprising from a politician are noteworthy considering the enquiry was headed by Sir Thayne Forbes, a retired High Court judge not noted for what we in England might call 'such robust language'. Following these event the Solicitors' Regulation Authority has announced and investigation into the conduct of the two solicitors involved. This will certainly be one to watch as attempts to hold the military liable through non-criminal channels become more widespread. 

For those with plenty of time, the entirety of Sir Thayne's report can be found here.

Shameless judicial runaround in Malaysia

Remember the case of the indelible indelible ink? It's a court-martial involving a Royal Malaysian Air Force pilot, Major Zaidi Ahmad, who was convicted after unsuccessfully challenging the president of the court on grounds of bias for having posted a disparaging remark on Facebook. Well, now that the court-martial is over, the civilian Kuala Lumpur High Court, to which Major Zaidi had turned for relief, has held that the issue raised by his complaint was academic and that he therefore must begin collateral attack proceedings all over again. The court also awarded costs of 2000 ringgit (~$558) against Major Zaidi.

According to this report in The Sun Daily, a new petition will be submitted.

Family members, but no press access to Gambia court-martial

Some family members of the six accused have been allowed into the court-martial now sitting in Gambia, but the media have been excluded. Details can be found here. The case arises from an abortive coup last year.

NPR reports on Pakistan's new military courts

National Public Radio's "All Things Considered" show has aired this excellent piece by Philip Reeves about Pakistan's new military courts.

Dr. Fawad Kaiser on Pakistan's new military courts

"A big problem with military courts is that trials are held behind closed doors. This creates a sphere beyond the control of ordinary courts and outside the country’s system of democracy. Trials in such institutions should not be closed to the public although defendants would have the right to appeal rulings. Behind closed doors, the possibility cannot be ruled out that the rights of the accused could be violated. The application of the amended law violates the rights of defendants to a fair trial as much as it allegedly promotes them. Judges in the military justice system are military officers subject to a chain of command, who do not enjoy the independence to ignore instructions by superiors. Although they are sent to judge other people, military judges continue to seek acceptance among their own people through their judicial policies. This requires explaining the state of military court jurisdiction over non-military personnel for human rights violations in democracies and stresses that the variation in reform of military courts is necessary to create the relative balance between the extent of military autonomy and the strength of the civilian rights in peacetime. . . ."

Dr. Fawad Kaiser, op-ed column, The Daily Times

How should Chinese military courts be reformed?

Prof. Zhang Jiantian in uniform

Zhang Jiantian, former Central Military Commission (CMC) Legislative Affairs Commission official (and former military judge), and currently a professor at the China University of Political Science and Law, set out his thinking on the problems of the military courts and how they should be reformed earlier this month on the Chinese national court website (and the People's Court Daily).  His views appear on this blog for the second time.

In this article, he provides the world outside the gated Chinese military legal community a window into the issues confronting the reform of Chinese military justice.

Professor Zhang notes that although in name Chinese military courts appear to be courts established in the PLA and People's Armed Police, in reality they are a department of the military political authorities, which has created a whole set of problems:

• Complete lack of legal protection for the military courts;
• Unclear status of the military courts;
• Difficult role for military judges;
• Military courts operate as a functional department in each military region.  Personnel management of military judges is split from management of their work.
• Operating funds are allocated by the political departments of each service, so the independence of the courts is affected by the control of the finance department of the military service over funding.
• The current system means that command leadership wherever the court is situated interferes in the trial of cases. 
• 2008 judicial reforms approved by the Communist Party Central Committee, which included military judicial reforms, were not effectively implemented, which he attributed to the absence of a legal framework.

What reforms are required?

• In considering the reform of the Chinese military courts, review systems and practices abroad and consider what can be borrowed or what lessons can be learned and used in China.  However, reform of the Chinese military courts must be based on the realities of China and its military.
• In Zhang's view, reform of the military courts requires a national law to escape the current situation in which  a patchwork of judicial interpretations and military regulations serves as an inadequate framework.  Reform of the military courts requires a legal basis.  The law should set out the status, organization, jurisdiction, selection of judges, and staffing of the military courts, among other issues. 
• Get rid of the current system of personal jurisdiction and establish a territorial based system of jurisdiction, establish unified military courts in each military theater (background information available here) instead of the current system of military courts in each service and military region, and allocate personnel based on the number of cases. Consider establishing circuit courts for major criminal cases, when needed, such as in war time, or involving secrecy. Retain the current system of three levels of courts.  This would create a system which met efficient use of manpower while removing interference and enable military courts to independently handle cases.
• Reform the current personnel, finance, and property management system.
• Consider establishing a jurisdiction for the military justice system separated from the command system.
• Separate the military courts from the military political authorities.  Create a single military court system.  Link the military system to the civilian system, but if that is not possible, it should become its own system within the military and should be separate from military headcount.
• Establish a military tribunal within the Supreme People's Court, which would be headed by the chief of the PLA Military Court and its members would have both military and civilian appointments and the appointments of judges would be approved by the National People's Congress (NPC) Standing Committee, with the appointments of the heads of the courts in the military theaters approved by the NPC Standing Committee and the appointment of other judges made by the Central Military Commission (CMC). 
• If a military tribunal cannot be established witinh the Supreme People's Court and the military courts remain within the military [this commentator believes this is more likely], the reforms of the military courts should follow the model of the establishment of the PLA Auditor, so that it is directly under the CMC, and the appointment of military judges is done by the CMC as authorized by the NPC Standing Committee. 
• Increase transparency.  Transparency and openness increase judicial credibility and prevents judicial corruption. Not only military cases but its personnel system and reforms were all secret, which meant the public, in and out of the military knows very little about the military courts.  The January 15, 2015 announcement of the corruption cases of 16 senior military officials has changed the practice of protecting the prestige of the military by not reporting on negative cases.  

Professor Zhang concludes with the thought that how to reform the military courts to assure fairness and justice is something we must pay close attention to.

In the outside world, we hope that Professor Zhang can be called upon as a trusted adviser as China works out the reforms of its military judicial system.

Thai junta to EU: we're different

The Bangkok Post reports here on the government's response to an EU delegation's objections to the use of military courts to prosecute civilians, contrary to the International Covenant on Civil and Political Rights. “The [National Council for Peace and Order] is well aware of this concern, but it would like [the EU] to think about the current situation in Thailand that is different from those of other countries."

Lost and found

Phew! Turns out there is news about what seemed to be a missing case case. The Nation has this report on last Thursday's proceedings in the Supreme Court of Pakistan. The three-judge bench did indeed hold a hearing, although it seems to have been dedicated pretty much to getting on the record why the government respondents, with a single exception, failed to submit the required responses to the constitutional petitions. The court afforded them another ten days to do so, but, more significantly, referred the cases to the full 17-member bench. The court also called upon the government to respond to a separate years-old petition challenging the 18th Amendment, which, among other things, added Article 175A to the Constitution in April 2010. From The Nation's account:

The chief justice questioned but whether the matter can be proceeded or not? Hamid Khan replied: “Let that matter be fixed but should be heard separately."

The chief justice maintained that the constitutional issues were raised but the common grounds are the same as raised in the petitions against 21st Amendment. 

“The common grounds were whether the constitutional amendments were in violation of basic structure or do we have basic structure of the constitution and if we have then whether these amendments could be touched?”

These cases would be heard along with this full court only then we review that order on 18th Amendment and for this we have to give notice to parties.

When their replies would be filed then it could be heard by full court so that matter does not go to preliminary. Sufficient time needed to be given to them.

The court observed that Maulvi Iqbal Haideer also filed the petition in this case in which he said that guidelines should be given for the establishment of military courts.

The court said when he had filed the petition at that time the bill was still in the Parliament.

Asma Jehangir requested that Iqbal Haider petition should be heard separately.

The bench directed that the attorney general and advocate generals to file the concise statements before the next date of hearing and adjourned the case till 24th February.

Apart from the petition, filed by the Lahore High Court Bar Association, identical petitions had been filed against 21st constitutional amendment in the constitution.

Barrister Zafrullah Khan, Chairman Watan Party Pakistan, Engineer Jamil Ahmed Khan of Communist Party Pakistan, Munsif Malik of Pakistan Justice Party, Supreme Court Bar Association, Pakistan Bar Council and Sindh High Court Bar Association have also challenged the 21st Amendment.