Another challenge to Pakistan's misuse of military courts

A habeas corpus petition has been filed with the Supreme Court of Paklistan, charging that the use of military courts to try civilians is unconstitutional. Details of the petition are set forth in this account in The Nation. The petition was filed on behalf of detained barrister Hassan Khan Niazi by Mr. Niazi's father, a journalist. Excerpt:

He requested the court to declare that Section 94 of the Army Act, and the 1970 Rules are in­herently discriminatory, in direct violation of Ar­ticles 25 and 175 of the Constitution therefore ultra vires of the Con­stitution and to declare that the Commanding Officer’s Letter dated 17-08-2023 as unconstitu­tional, illegal and unlaw­ful vis-à-vis the handing over of the custody of the [said] Hassan Niazi in vio­lation of his fundamental rights, and provisions of the constitution. 

The petitioner fur­ther prayed the court to hold that Pakistan Army (Amendment) Act 2023 and the Official Secrets (Amendment) Act 2023 are ultra vires the Con­stitution, having been promulgated without fulfilling the formalities of Article 75 of the Con­stitution. He also asked the court to hold that the concept of ‘deemed’ as­sent as used in the prom­ulgation of the Army Act 2023 and Official Se­crets Act 2023 is alien to the constitution and contrary to the legisla­tive and constitutional scheme set out therein.

Australian Royal Commission on defence and veteran suicide continues its work

In 2021, the Governor-General of Australia created a Royal Commission into Defense and Veteran Suicide. The Commission's user-friendly website can be found here. The latest press release states:

The independent body charged with ensuring a fair and impartial military justice system will come under the spotlight when the Royal Commission into Defence and Veteran Suicide continues its hearing in Melbourne this week.

The Inspector-General of the Australian Defence Force (IGADF), James Gaynor, and his team will give evidence about the policies and processes that guide their work. Of particular interest to the Royal Commission will be how the Office of the IGADF maintains its independence while operating inside the Defence establishment.

Their evidence will follow that of former serving ADF members who last week gave evidence about their experiences engaging with the Office of the IGADF.

The Royal Commission will hear further evidence about the culture and practices of the Department of Veterans’ Affairs (DVA).

Commission Chair Nick Kaldas said the inquiry regularly hears from veterans whose interactions with DVA cause them immense distress.

“Despite signs of change within DVA, we continue to hear evidence the Department operates more like an insurance processing house and its adversarial approach is impacting the mental health and well-being of veterans and their families”, he said.

Former Army medical officer and Afghanistan veteran Daniel Mealey will also give evidence.

Dr Mealey, known for his advocacy for homeless veterans, served in Afghanistan as an Army doctor. In 2019, he produced the documentary Man Down which examined veterans’ struggles with post-traumatic stress disorder (PTSD) and the difficulties faced when seeking support from DVA.

During the first week of the Melbourne hearing block, the inquiry heard from Julie-Ann Finney, whose son David died by suicide after serving in the Navy. It also heard from Victorian Premier Daniel Andrews, who said DVA behaved more like an insurance company than an agency that exists to support veterans.

The Melbourne hearing will conclude on Friday 8 September 2023.

Analysis of an Indonesian court-martial

Victor Januaris Berutu, Juanrico Alfaromona Sumarezs Titahelu and Elias Zadrach Leasa of the Faculty of Law, Pattimura University, Ambon City, Maluku Prov., Indonesia, have written Analysis of Military Court Decision No. 94-K/PM III-18/D/IX/2018 in the Case of Persecution Committed by Unscrupulous Military Personnel, 2 J. Ed. Tech., Info. Sci. & Health No. 2 (2023). It can be found here.

Asking the wrong question

From the conclusion of David A. Schlueter & Lisa M. Schenck, Transforming Military Justice: The 2022 and 2023 National Defense Authorization Acts, 231 Mil. L. Rev. 1, 45-46 (2023):

It is clear that the 2022 and 2023 NDAAs will effect major changes to the military justice system. The real question is whether the changes will result in the outcomes that Congress intended.

For example, reserving charging decisions for special trial counsel will certainly provide what some reformers have been arguing for—more control by uniformed judge advocates. But, will that shift result in more sexual assault prosecutions and convictions, the perceived goals of the legislation? Perhaps not. If lawyers alone are examining the evidence and measuring the credibility of witnesses, they may be even more hesitant to bring a close case to trial. Under the current system, both the commander and a uniformed lawyer are involved in the decision as to whether and what charges should be preferred. As such, there may be cases where the two parties do not agree on those questions; in a command-centric system, the commander’s view can prevail. It is important to recall that uniformed lawyers, unlike commanders, are bound by rules of professional responsibility, such that a decision by a uniformed lawyer must be informed by those rules. If the new system results in fewer prosecutions, then what is Congress to do next—remove uniformed judge advocates from the equation?

But what if the goal is broader than simply driving up the number of sexual assault cases but to foster increased confidence in the administration of military justice by having lawyers do the lawyer's job of deciding whom to prosecute for serious offenses?

World War II reading list

For a fascinating read, check chapter 7 of Claus Bundgard Christensen, Niels Bo Poulsen and Peter Scharff Smith, Genocide and Cultural Memory: The Waffen-SS, 1933 to Today. It's titled Punishment and Discipline in the Waffen-SS: Law and Legal Practice in the Racial State. Of particular interest is the disparity in punishment policies as between the SS and the Wehrmacht. The increase in the number of executions from World War I to World War II is also startling.