A return to military jurisdiction over "military crimes"?

Lt. Gen. Carlos Diaz Morfa, the Minister of Defense in the government of Luis Abinader, the President of the Dominican Republic, addressed a letter on March 24, 2021, to the President of the House of Representatives, requesting that Article 5 of the former Penal Code be included in the new Penal Code that is being elaborated by Congress.  This letter has unleashed an interesting debate in the country on the constitutionality of military jurisdiction.

It is argued that the Minister of Defense is seeking to restore a derogated provision of the Penal Code that permitted military jurisdiction to extend to crimes committed by members of the military, which due to the fact that the military was perceived as judging itself, did not result in serious penalties.  The revised Constitution of 2010, however, in Article 254 limited military jurisdiction to disciplinary infractions and military crimes set forth in law.

"Article 254.  Competence of military jurisdiction and disciplinary regime.  Military jurisdiction only is competent to hear cases of military crimes set forth in laws on the subject.  The Armed Forces will have a military disciplinary regime applicable to those infractions, which do not constitute crimes in the military penal code."

The Constitutional Tribunal in a judgment TC/0512/17 repealed all the crimes set forth in the military penal code, that had existed since 1953.  In a subsequent judgment, TC/0350/19 the Constitutional Tribunal clarified that military tribunals only had the power to hear cases that involved administrative disciplinary offenses and that they were barred from dealing with cases involving crimes.  From the foregoing, the Constitutional  Tribunal averred, "military criminal tribunals are non-existent in our legal system."

Defenders of Minister Diaz Morfa's position argue that the Constitution itself recognizes military jurisdiction over crimes and they limit their support of military criminal jurisdiction to applicability to members of the military for the commission of crimes that due to their nature affect military interests, such as desertion, not crimes that involve civilians or human rights violations.

Article 74(3) of the Constitution provides that international human rights treaties, ratified by the Dominican Republic, have constitutional rank in the domestic legal hierarchy and are to be applied directly by courts and governmental organs.  The jurisprudence of the Inter-American Court of Human Rights established that military courts are not competent to investigate, prosecute and punish civilians or perpetrators of human rights violations.  The Court has recognized a limited scope of military jurisdiction for crimes that affect military interests: 

". . .military criminal jurisdiction shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces. Therefore, the Court  has previously stated that only active soldiers shall be prosecuted within the military jurisdiction for the perpetration of crimes or offenses that based on their own nature threaten the juridical rights of the military order itself." (Radilla Pacheco v. Mexico, (2009) at 272).

In this observer's opinion, both the Dominican Constitution and international human rights law permit a limited scope of military jurisdiction for crimes that affect military interests.  But not having seen the scope of the proposal of Minister Diaz Morfa's letter and listening to some of the televised defenses of the position on the internet, it is not clear that the defenders of the Minister would be content with such a restricted return to military jurisdiction.