Thursday, May 25, 2017

Martial law and military courts in the Philippines

President Rodrigo Duterte of the Philippines has placed part of the country under martial law, so we can expect to read about military courts trying civilians. From this report:
Most countries use a different system, such as announcing a state of emergency, but in the Philippines the President can place an area under the control of the Armed Forces of the Philippines. 
The features of martial law involve:
  • Curfews
  • The suspension of civil law, civil rights and habeas corpus
  • The application of military law or military justice to civilians
  • Civilians defying martial law being subjected to military tribun[al]s (Court Martials)
Although the legal effects of martial law differ depending on where it is issued, it generally involves the suspension of ordinary civil rights. 
A state of martial law is temporary in theory, but could continue indefinitely.
Human Rights Watch's statement gives some useful background:
In 1972, then-President [Ferdinand] Marcos imposed martial law and suspended habeas corpus throughout the Philippines, which facilitated widespread abuses by the military and other security forces, including detention without charge, torture, enforced disappearances, and extrajudicial killings. These abuses did not end when martial law was lifted in early 1981. The 1987 Philippine Constitution, which was drafted after Marcos’s overthrow during [the] “people power” revolution in 1986, places restrictions on the proclamation of martial law and the suspension of the writ of habeas corpus, as well as on their implementation. 
Article VII, section 18 of the Constitution empowers the president in the event of “invasion or rebellion” to impose martial law and suspend habeas corpus for up to 60 days. A majority of members of both houses of Congress can revoke – or extend – the proclamation or suspension without the president’s approval. 
Also under section 18, the Supreme Court may review a case brought by any citizen contesting the factual basis for martial law, and must hand down its decision within 30 days. 
The Constitution also provides some important due process protections during martial law, Human Rights Watch said. A state of martial law does not suspend the Constitution, nor replace the functioning of the civil courts or Congress. It only permits military courts to try civilians when civil courts are unable to function. Suspension of habeas corpus applies only to people judicially charged for rebellion or offenses linked to invasion, and those arrested or detained must still be charged by the courts within three days or be released.

Stopping the clock

On May 15, 2017 the Parliamentary precinct newspaper Hill Times published a response to Major General Blaise Cathcart's earlier end of tour of duty interview published in the Lawyers' Daily. The article written by Joshua Juneau, one of my associates, is a tad uncomplimentary of the Judge Advocate General's legacy after seven years in that position. The article focuses specifically on an issue of significant importance to the modernization of the Canadian military justice system and, of more value, the integrity of the legislative process.

The article notes that Bill C-15 - Strengthening Military Justice in the Defence of Canada (Statutes of Canada, 2013, c. 24), which was drafted by the Office of the JAG, was given Royal Assent on June 19, 2013 and was enacted into law after two years of parliamentary debates. The enactment introduced a number of significant amendments to modernize the military justice system, including the composition of the court martial panel, victims impact statements, the introduction of additional sentencing options, the modification of the limitation period applicable to summary trials etc.

Yet, four years later, only 60 of the 134 amendments to the National Defence Act have come into force.

This gives new meaning to the French expression: "Avancez en arrière".

Wednesday, May 24, 2017

Photo sharing bill passes House of Representatives

By a vote of 418-0, the House of Representatives today passed a bill to amend the Uniform Code of Military Justice to criminalize unconsented sharing of nude photos. Leo Shane III has the story here for Military Times.

The measure now goes to the Senate.

Tuesday, May 23, 2017

Happy 100th birthday

The NOAA Commissioned Corps, a uniformed (but not armed) service that is part of the U.S. Department of Commerce, turns 100 today. All the best!

The Washington Post has the story here.

The rocky road of military justice: Pakistan, India and beyond

An Indian blog, Law and Other Things, has kindly run this post by the editor:

Considering the fact that it’s a pretty obscure area, military justice is very much in the headlines right now. It’s a good time to take stock of current developments. As you will see, while once military justice existed in a kind of legal cocoon, separate and apart from developments in society as a whole, that is no longer the case.

The subcontinent is a good place to start. Readers are likely to be aware of the current controversy over the fate of a retired Indian Navy commander, Kulbhushan S. Jadhav. Commander Jadhav was convicted in a Pakistani military court and sentenced to death. Pakistani authorities refused India’s efforts to communicate with him as provided in the 1963 Vienna Convention on Consular Relations, to which both countries are parties. India invoked the jurisdiction of the International Court of Justice, which on May 18 ordered Pakistan not to proceed with the execution.

The proceedings at The Hague are playing out as a fight over remedies in the event a country violates the consular access provision. Will the court stop its inquiries once it decides whether Pakistan violated that provision, or will it go further and address the fairness and legality of the Pakistani legal proceedings that brought Commander Jadhav to Death Row? My prediction is that, once it reaches the merits, the ICJ will confine itself to the Vienna Convention issue, and simply turn back the hands of the clock so that the status quo as it existed prior to any breach of the Convention is restored. That will mean Pakistan will have to afford Commander Jadhav consular access, and presumably that access will give him a better sense of his legal rights under Pakistani law, presumably leading to arrangements for him to obtain legal counsel of his own choosing, rather than the Pakistani military officer who previously assisted him.

But other than that, Commander Jadhav will still be in serious trouble because the grave shortcomings of the Pakistani military court will remain. Those courts, whose jurisdiction ought to be confined to military-related offenses by military personnel, were granted jurisdiction over civilians in January 2015 by a constitutional amendment that was passed hastily and had a sunset date only two years later. It lapsed early this year but Parliament renewed it for another two years, so it will remain as an available trial forum. Sadly, a fractured Supreme Court of Pakistan in 2015 upheld the arrangement. The 2017 amendment is the subject of pending constitutional petitions, so it will be some months before we will know whether the court will take a different approach the second time around. (My own view is that the 2015 and 2017 amendments are both invalid because – given their two-year duration — they are actually only statutes masquerading as constitutional amendments, and hence cannot displace protections found elsewhere in the Constitution of Pakistan.)

The shortcoming of Pakistan’s military courts run the gamut. Secret trials. Lack of judicial independence. Unavailability of counsel of choice. Appellate review that is a mockery. Highly constrained review by the civilian courts. Above all, it is a misuse of the military court forum to try a civilian there. None of this is novel. These points are settled under the International Covenant on Civil and Political Rights and reflected in the UN’s 2006 Principles Governing the Administration of Justice Through Military Tribunals.

While the Jadhav case is concerning on its own terms (especially because Pakistan has continued to execute military court defendants), it calls attention to the unsettled state of military justice and the difficulties of making progress on issues that should have been addressed long ago. While Pakistan is an extreme case, it unfortunately is not lacking for company.

At the risk of losing some of my audience, I’ll turn to India. Indian military justice needs more than a face-lift: it needs serious surgery. For example:
  • There should be a single disciplinary statute covering all military and paramilitary forces
  • There should be an independent military judiciary
  • Charging decisions should be made by prosecutors outside the chain of command
  • There should be meaningful appellate review by the civilian courts, including the Supreme Court of India
  • The judicial review system has to move at a much faster pace, in contrast to the current arrangement under which cases linger literally for decades, by which time it is nearly always impossible to fashion fully relief
Looking further afield, it is discouraging to see one country after another – countries whose leaders know better – subjecting civilians to trial in military courts. Current examples include not only Pakistan but Venezuela, Lebanon, Uganda, Bahrain and Russia. This is moving in absolutely the wrong direction. Sometimes this happens because the civilian criminal justice system is dysfunctional, but the answer surely must be to fix that system rather than throw up one’s hands and turn in desperation to the military. At other times, military courts are relied for entirely improper reasons, such as to stifle dissent. Either way, this is a bad trend and civil society in the affected countries needs to resist it.

Two other issues that ought to be on people’s screens are the problem of impunity with respect to deployed personnel and the special problem of indiscipline among peacekeepers, whether under UN auspices or not. A number of countries are currently engaged in military operations beyond their borders, and experience teaches that misconduct by deployed personnel is not unheard of. This may be merely the usual (impermissible) theft, looting and similar crimes, or it may involve grave breaches of the law of war. Several cases over the last few years have involved the killing of wounded enemy combatants. Desecration of fallen combatants has been reported. Handling these cases can be a challenge even for countries with the deepest commitment to the rule of law. Who (if anyone) will be charged and at what level of severity? What sentence can be secured in the event of conviction, and how will the sentence be affected by appellate review and the exercise of clemency at the political level?

Problems of impunity are, if anything, magnified when it comes to peacekeeping units. “What happens in [fill in the country] stays in [fill in the country]” has long been the practice. Troops far from home may be tempted by greed, malevolence or sexual needs to prey upon vulnerable local populations, but disciplinary action may be slow in coming, if it ever does. The troop contributing country, rather than the UN or other umbrella organization for the mission, has the right and duty to impose punishments. The UN’s Department of Peacekeeping Operations and the Secretary-General are fully aware of this problem and are finally taking steps that, with luck, may lead to improved discipline. Needless to say, until the UN gets on top of this problem, troop contingent relations with the local population every mission seeks to protect will be more of a challenge than necessary.

Finally, countries need to be systematic about military justice reform. Military leaders should be proactive rather than waiting for change to be forced on them by events on the ground, pressing legislative issues such as sexual assault in the forces, or judicial decisions that may or may not make practical sense. Every country of course has its own political culture and dynamic. India, for example, turned to a broad-based committee to formulate suggestions. In generating a recent set of military justice reforms the Pentagon was open to suggestions but conducted no public hearings. Shamelessly, when the administration’s proposals reached Congress, neither the Senate nor the House of Representatives conducted a single public hearing. The result of that opaque process was that such long-overdue “no-brainer” reforms as giving military personnel the same access to the Supreme Court as is enjoyed by all other criminal defendants never even came up.

These notes only scratch the surface with respect to the range of military justice issues countries around the world are grappling with. Pakistan may be under the microscope at the moment, but it is not alone.