From this article in Dawn
Good to know.
 |
| Kimmo Lackman |
Here is the story of a Nigerian doctor who had to sue the Air Force to let him resign. His superiors argued they did not have to accept the resignation, and labeled him a deserter. Luckily for him, a judge found the law requiring approval to resign in situations like his unconstitutional, allowing the good doctor the freedom to choose how to earns his living.
Ever wonder how often the U.S. Court of Appeals for the Armed Forces grants extensions of the time in which to file the supplement to the petition for grant of review? In the 12 months ending March 31, 2023, the court granted all 159 such requests. Of these, 123 were initial requests, 28 were second requests, and 8 were third requests. None were denied.
Against that backdrop, what to make of this interlocutory order from the court's March 25, 2024 Daily Journal?
No. 24-0106/AF. U.S. v. DeQuayjan D. Jackson. CCA 40310. On consideration of Appellant's second motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is granted, up to and including April 16, 2024. No further extensions of time will be granted in this case.
Is this evidence of a change in policy at the U.S. Court of Appeals for the Armed Forces or simply a one-off? If the latter, what was the court's reasoning? If the former, why not say so? Comments or clarification welcome (real names only, please.)
Justice Jemimah Keli from Bungoma acknowledged that the rights of the officer, who has participated in multiple peacekeeping missions in Sudan and Somalia, were disregarded to expedite the process of holding the officers involved in the spy's torture accountable, as stated in a letter from Brigadier Mohamed Nur Hassan. The judge also observed that the quick resolution of Mulekano's case deprived him of the opportunity to challenge the evidence against him or present his own defence. Senior Private Edgar Mwore and Senior Private Patrick Murithi were the individuals involved, according to the Judge.
The Officer Commanding (OC) did not follow instructions and proceeded to document the case as 'heard', as per the Judge's statement. This incident took place on the morning of July 18, 2019. It was revealed in court that the OC heard the case and then passed it on to Colonel Rotich, a higher-ranking official, for further instructions. The Judge noted that it was peculiar that the record presented to Colonel Rotich in the afternoon, when Mulekano was remanded for a decision rather than a trial, had been modified to indicate that Mulekano had stated he did not wish to call witnesses.
The Judge concluded that this was an attempt by Colonel Rotich to rectify the mistake of not providing witnesses during the hearing before the OC. As a result of this breach, the court ruled that Mulekano should receive compensation of Sh 5 million for his wrongful dismissal and violation of his right to a fair trial. Additionally, the court ordered that the discharged soldier, who still had six years remaining until retirement, should receive his terminal benefits, which the Force had initially decided to deny him. The Judge emphasized that Mulekano had served for 29 years, only to face an unfair hearing in his old age.
At the outset of the hearing, Justice Khawaja’s counsel objected to the size of the bench.
“103 suspects are in custody. Their families want to be included in the case proceedings,” Ahmed said, urging the court to allow the suspects’ families to be present for the proceedings.
To this, Justice Khan replied that the courtroom was fully occupied, adding, “There is no objection on [the families] coming to the court; we will look at this matter.”
Justice Khawaja’s counsel further requested the SC to constitute a nine-member larger bench to hear the appeals. Ahmed argued that his client had sought the same in his petition. “It is my request to the court to urge the SC committee to constitute a nine-member bench,” he said.
A yawning gap is emerging in how military justice is trained globally. While military justice is based on domestic laws that obviously vary from country to country, underlying military justice are tenets of international law that govern conduct in war and basic standards of judicial tribunals. Sources of this law include international humanitarian law, international human rights law, and international criminal law.
Countries such as the United States that are not members of the Rome Statute Some countries tend to deemphasize instruction in international criminal law.
On the other hand are countries that have signed the Rome Statute, where training in international criminal law is the central feature of military justice instruction.
Recent military justice training in Nigeria provides a case in point about the centrality of international criminal law. The Nigerian Chief of Army Staff, Lt.-Gen. Taoreed Lagbaja, just presided over a specialized training session of Nigerian Army personnel on the operations of the ICC in Abuja.
The training was organized by the Army in collaboration with the Nigerian Institute of Advanced Legal Studies.
This training is not just a theoretical familiarization with the Rome Statute and its tenets. The ICC recently undertook at preliminary examination in Nigeria that concluded in December 2020. Nigeria underwent a process called "positive complementarity" in which it modified its domestic laws and legal procedures, including those related to military justice, to help Nigeria better conform with its Rome Statute obligations.
"It is true that the '[Courts of Criminal Appeals (CCAs)] are presumed to know the law and [to] follow it.' United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). However, this can be a hazardous legal path to tread when, as here, the CCAs are applying a new statutory provision. We have entered an era where there are many changes afoot in the military justice system. Mischief will result if this Court fails not only to provide crisp, clear guidance to the CCAs about the practical effects of those changes, but also if it fails to ensure that the CCAs are scrupulously adhering to the legal and analytical obligations that those changes have placed upon them."
Ohlson, C.J., concurring in part & dissenting in part, United States v. Flores (C.A.A.F. Mar. 14, 2024), at 14. Judge M. Tia Johnson joined in the opinion. [H/T to CDR Phil Cave across the pier.]
Excerpt from Ryan Burke and Jahara Matisek, Trump(ing) Tradition: Old Laws, New Norms and the Danger to Civil-Military Relations, Armed Forces & Society (2024) (H/T to Cdr. Phil Cave)
The Honorable M. Tia Johnson
United States Court of Appeals for the Armed Forces
450 E St, NW
Washington, DC 20442-0001
CLERKSHIP OPPORTUNITY
The United States Court of Appeals for the Armed Forces exercises world-wide appellate jurisdiction over court-martial cases involving U.S. military personnel. Cases on our docket address a broad range of legal issues, including constitutional law, evidence, administrative law, and national security law. Our decisions are subject to direct review by the Supreme Court of the United States. Our clerks perform an important public service in an environment designed to enhance their legal skills. The Court's web site, https://www.armfor.uscourts.gov, contains additional information about the Court, including recent decisions.
This is a civilian clerkship and no prior military service or familiarity with the Uniform Code of Military Justice is required. Judge Johnson is seeking top law school performers with strong research and legal writing skills.
TERM CLERKSHIP
Please submit applications via e-mail to johnsonchambers@armfor.uscourts.gov.
If you have any questions, please call (202) 761-1461 or johnsonchambers@armfor.uscourts.gov.
The Chuncheon branch of the Seoul High Court upheld the earlier court ruling that ruled in favor of the Air Force dismissing the senior non-commissioned officer, who had the rank of "wonsa" which is roughly equivalent to chief master sergeant in the US Air Force.
He was removed from the post in May 2022 after being accused of insulting his colleagues, swearing at them and assaulting his subordinates. Among the accusations are of him having one of lower-ranked non-commissioned officers pick him up after drinking, neglecting one's duties and smoking multiple times in non-smoking areas.
In addition to his dismissal, the court martial sentenced him to a prison term of four months, suspended for two years for violating the Military Personnel Management Act.
.svg.png)
From this Human Rights Watch report on recent Egyptian legislation:
Law No. 3 tasks the armed forces with “assisting, and fully coordinating with the police, in guarding and protecting public and vital facilities and buildings including power stations, electricity lines and towers, oil fields, railway tracks, roads, bridges,” and “other comparable facilities.” The law provides military personnel involved in such operations with the same judicial powers of arrest and seizure as the police. It also stipulates that all offenses against or in relation to broadly worded “vital” public facilities and buildings are to be prosecuted in military courts.
* * *
Amendments to the Military Code of Justice include adding to the military courts’ jurisdiction crimes committed against “public and vital facilities and public properties, and other comparable things, that are protected by the armed forces.” Other amendments introduced new military appeals courts for major offenses, following the template of a similar change in January made to the civilian court structure. Previously, appeals in cases of major offenses in military courts went directly to the Military Cassation Court, the military counterpart of the Cassation Court in the civilian justice system.
While increasing opportunities for legal appeals could be a positive change, it does not alter the well documented abusive record of military courts, their lack of independence, and their inability to uphold the right to a fair trial. The motivation appears to be increasing the military judiciary’s capacity to replace the function of the civilian court system rather than limiting its mandate to military staff, Human Rights Watch said. The amendments introduced a new entity within the Defense Ministry to oversee military courts, but they did not change the nature of military judges as serving military officers who are subject to the Defense Ministry’s laws regulating issues related to hierarchy, promotion, discipline, and general work.
* * *
The African Commission on Human and Peoples' Rights, in interpreting the African Charter on Human and Peoples' Rights, has said that military courts “should not, in any circumstances whatsoever, have jurisdiction over civilians.” It said that even when military courts follow guidelines for fair trial guarantees – as they always should – their “only purpose” should be in “offenses of a purely military nature committed by military personnel.”
Details of the United States v. Emanuel popup zoom can be found here. There is a link to instructions for anonymous zooming for those who are shy, informally attired, or risk-averse. Click here for pertinent documents.
Duty to assist the Cause of Justice, not just the Client
Navdeep Singh & Pascal Levesque
The two of us came across some interesting comments on social media while discussing the recent (and very pertinent) observations of the Chief Justice of India during the Commonwealth Attorneys and Solicitors General Conference (CASGC), 2024, to the effect that law officers of the State must not just function as representatives of the government but also as officers of the court.
While
this aspect of litigation might sound trite to true-blue constitutionalists,
especially from functional democracies, it remains hazy to the public at large
and even for many officers of the government, all across the world, who see
litigation as nothing but an extremely adversarial concept and expect the
establishment’s law officers only to defend the State at all costs.
But indeed,
the duty of a lawyer is to the cause of justice more than her client. The obligation
is to assist the court in arriving at a just decision, rather than just sharply
singing the tune of the party being represented. Though this applies both to
lawyers representing private parties as well as instrumentalities of the State,
it assumes greater importance in case of the latter since the government is
supposed to be a faceless and nameless entity in perpetuity, irrespective of
the political party in power, which should be more concerned with justice,
rather than a ‘win’ within the contours of a courtroom.
It is
in this context that Justice Robert H Jackson of the Supreme Court of the United
States, who also happened to be a former Attorney General, speaking at his famous
1940 address to the United States Attorneys, underscored
that the spirit of fair-paly and decency should animate the federal counsel,
adding that a lawyer who risks his name for fair-dealing to build up statistics
of success has a “perverted sense of practical values, as well as a defect of
character.” He also called upon government lawyers to temper their zeal with
human kindness. But the golden words in that lecture shall always remain these-
“Although
the government technically loses its case, it has really won if justice has
been done.”
This
spirit of fairness expected of a counsel is not uncommon in common-law legal
systems- both on the civil as well as criminal side. In India, it was
captured in beautiful words in Ram
Ranjan Roy vs Emperor AIR
1915 Cal 545 by the Calcutta High Court. Later, in Ghirrao
vs Emperor AIR 1933 Oudh 265, the Oudh Chief Court outlined the
responsibility of a prosecutor by stating- “his duty as a public prosecutor is
not merely to secure the conviction of the accused at all costs but to place
before the court whatever evidence in possession of the prosecution, whether it
be in favour of or against the accused and to leave it to the court to decide
upon all such evidence, whether the accused had or had not committed the
offence with which he stood charged.”
Again, in the context of prosecutors, the Supreme Court of India noted in Shakila Abdul Gafar Khan vs Vasant Raghunath Dhoble 2003 (7) SCC 749 that “it is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.”
On the
overall fairness expected in litigation by the government, in the case of Urban Improvement Trust,
Bikaner vs Mohan Lal 2010
(1) SCC 512, the Supreme Court of India observed that
governments and statutory authorities must not raise frivolous and unjust objections
or act in a callous or highhanded manner, and must rather act as model or ideal
litigants. Citing earlier judgments, the Supreme Court again emphasized that
the government must not try to win a case against its own citizens by hook or
by crook or to score a technical point or overreach a weaker party
In
Canada, in the case of Boucher
vs The Queen [1955]
SCR 16, where the prosecutor used inflammatory language in his
address to the jury, the Supreme Court of Canada stated that the prosecutor’s
duty “should be done firmly and pressed to its legitimate strength but it must
also be done fairly,” adding that it “excludes any notion 'of winning or losing’,
rather a matter of public duty” and “in civil life there can be none charged
with greater personal responsibility, it is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial
proceedings.”
Of course, as far as the duty
of prosecutors is concerned, the guidelines adopted at the 8th
United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, 1990 (Havana
Statement) speak of impartial functioning of prosecutors and their
duty to act with objectivity, irrespective of whether the position taken is to
the advantage or disadvantage of the suspect. These also provide that
prosecutors shall not initiate or continue prosecution when an impartial
investigation shows the charge to be unfounded.
But
even more than the counsel, the sentiment of assistance to the cause of justice
is required to be ingrained in government officers dealing with litigation,
some of whom view litigants as rivals of the State, and this includes trivial
service, employment or pension related matters. By experience, one of us
(Navdeep Singh), can say that the prevalence of this attitude is alarmingly
high in litigation related to the defence services wherein not only certain officers
avoid briefing their own counsel about the true position of law to assist the
court in dispensing justice, but also attach too much prestige by getting
overinvolved in matters and pressurising the system to ‘win’ cases. Unaware of
how the litigation milieu works, they even express an uncomfortable surprise in
regular happenings in courts such as two opposite counsel sharing healthy and
hearty relations or informal chitchat over coffee. This attitude had, in fact, prompted the then
Defence Minister of India, Mr Manohar Parrikar, to appreciably pass official
instructions in 2018 warning officers to take note of the guiding principles
that ‘litigation be viewed in an impersonal, non-adversarial and dispassionate
manner and should not be made a prestige-issue or a win/loss situation.”
Lawyers serving the State, not only prosecutors but also those rendering legal advice to ministries and public bodies, have a general duty to ensure that the affairs of the State are administered in accordance with the law, which includes the principle of moderation in prosecutions. By doing so, it contributes not only to the fairness in judicial proceedings or trials, but in mitigating them in the first place. It might not be as glamorous as a ‘win’ in a court in the short-term, but is certainly more robust, long-lasting and precious in upholding the Rule of Law and the duty towards the profession and the society, besides reducing the burden of litigation on the State, the exchequer, and ultimately the taxpayer.
---
Navdeep Singh
Navdeep Singh is a practising lawyer at the Punjab & Haryana High Court, founder President of the Armed Forces Tribunal Bar Association and a former member of the Committee of Experts constituted by the Government of India to reduce litigation in the Defence Ministry and reform the system of Redressal of Grievances. He is also a Member of the International Society for Military Law and the Law of War, Brussels, International Fellow at the National Institute of Military Justice, Washington DC, and Member of the Advisory Committee on Military Justice of the Commonwealth Secretariat, London.
Dr Pascal Levesque
Dr Levesque has acted as legal
counsel for public-sector organizations, including as a military lawyer, public
prosecutor and defence lawyer in Canada. He has been a teacher and a university
ombudsperson. He currently works in the field of parliamentary ethics and
public integrity. He is also a Member of the International Society for Military
Law and the Law of War, Brussels, and International Fellow at the National
Institute of Military Justice, Washington DC.
The opinions are their own.
