Tuesday, June 30, 2015

Of the [re-]naming of bases

With apologies for mission creep . . .

In the aftermath of the Charleston shootings and the continuing debate over the Confederate flag, the Washington Post has this interesting piece about whether the U.S. Army installations named for heroes of the Confederacy ought to be renamed. Comments, anyone? [Real names only, please.]

What discipline for Nigerian police who refuse military duty?

The Nigerian Police Act permits authorities to conscript police officers for military duty. But what formalities must be observed, and what procedure will be followed in case of insubordination? These questions are front and center in Nigeria, where 23 policemen are facing departmental "orderly room" trial for refusing to don military uniforms for the fight against Boko Haram. Details here from Punch:
The officers had received counter-insurgency and counter-terrorism training in Belarus in 2014. Upon their return to the country, they were ordered to go for a military operation which they refused, saying they needed to get a signal (directive) from the Force Headquarters before they could participate in it. 
They were detained on April 20, 2015 in a military facility at Gwagwalada, Abuja, for demanding explanation from the Army authorities on the procedure for their ‘conscription’ into the Army. They were subsequently released on May 15. 
Sources informed our correspondent on Monday that the policemen had been directed by the Inspector, Administration, Force Headquarters, to report at the Provost’s office for trial.

The men were said to have received a text ordering them to report for the disciplinary exercise which may lead to their demotion or dismissal from the service. 
The text message sent to the personnel read, “You are to report at Provost, Force Headquarters, Abuja, on June 29, 2015, for the orderly room trial. Don’t fail to come, Inspector, Administration, Provost Police, FHQ, Abuja.” 
One of the affected policemen said they refused to take part in the military operation because they were asked to wear military uniforms when they were not soldiers, adding that there was no order from their superiors, “and they could easily disown us if something goes wrong.” 
But a senior police officer countered his argument, saying the Constitution permits the conscription of any policeman into the military, citing Section 4 of the Police Act. 
The Police Act, Cap. A19 says, “The police shall be employed for the prevention and detection of crimes, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within and outside Nigeria, as may be required of them by, or under the authority of this or any other Act.” 
A Police Service Commission official, however, said it was improper for the military to ask policemen to participate in a military operation without a direct order from the Force Headquarters.
The comments following the article are also worth reading. 

Monday, June 29, 2015

Crime and punishment in the National Guard

The NBC "News4 I-Team" in Washington, D.C has run this investigative piece about how sexual assault is dealt with in the National Guard when not in federal service (i.e., in title 32 status). Excerpt:
What happens to those accused of rape or sexual assault in the National Guard varies dramatically depending on what state you work in. 
Those who served in California or Idaho faced punishments including a court martial, incarceration and dishonorable discharge. But if you served in states including Alabama, New Jersey or West Virginia, you more likely ended up with a letter of reprimand, according to a groundbreaking survey compiled by the News4 I-Team.
Consider this dramatic graphic:

Punishments for Sex Assault

GOMOR or Letter of ReprimandDishonorable DischargeOther Type of DischargeGeneral DischargeOther Than Honorable DischargeAdministrative SeparationRemoval from AGR program/Federal...Bad Conduct DischargeDischarge for MisconductForced ResignationResignation in Lieu of Other Act...Forced RetirementOther ActionsFederal Discharge in Lieu of Oth...Federal Conviction for Lesser Of...Incarceration/ConfinementSeparation for Conduct AllegedArticle 15Reduction in RankBar Reenlistment

The power of ideas

Students of American military justice are well aware of Article 88 of the Uniform Code of Military Justice, which makes it an offense for officers to speak contemptuously of the President and other high officials. Comes now Colonel Bashiru Sahid Conteh, a retired officer of the Republic of Sierra Leone Armed Forces, with a Facebook suggestion that African militaries show the same kind of restraint:
My dear brothers and sisters of our respective Armed Forces on our beloved Africa continent, Article 1 of the United States of America (USA) Constitutional Bill of Rights says:- “Congress shall make no law abridging the freedom of speech.” Within that right, the civilian may speak abusively of the President without getting into trouble, provided he does not threaten the President’s life.

Then Section 8 of the United States Constitution declares that the Congress shall “...make rules for the Government and regulation of the land and naval forces” and under the Uniform Code of Military Justice, these words restricting the rights to freedom of speech, appear:- “Any officer who uses contemptuous words against the President, Vice President.. shall be punished as a court martial may direct.”

Hmm for sure someone may ask why I am making reference to USA Constitution in dealing with issues of our beloved Continent?

My answer may be simply put this way: The US is one of the most democratic nation states on earth where everybody may be free to say anything he/she thinks, but there are still constitutional restrictions on public statements of their service personnel, especially against the political class, which I believe aims at making them to remain apolitical as long as they are in active service.

Ladies and gentlemen of our respective Armed Forces on the continent, for the respect and honour of our noble institutions, let’s have less to do with public political debates, no matter how it affects our emotions, ethnicity or region, in order to remain apolitical, a good quality of a professional Armed Force.

We are free to fully participate in our respective national politics after our retirement from active military service. May Lord God bless us all.

Covering the Supreme Court of Pakistan: "zero defects" journalism

In a disturbing footnote to the media coverage of the Supreme Court of Pakistan's pending cases on the validity of the 18th and 21st Amendments to the Constitution, consider this:
The Ministry of Law, Justice and Human Rights on Wednesday took serious notice of a news report published in various sections of the press referring to the Supreme Court stating “Trials by military courts in democracy is dictatorship” terming it totally baseless and contrary to the proceedings of the apex court.

In a statement issued by the ministry, it said, “Stern legal action will be taken against those who issued and published baseless and fabricated statements about the Supreme Court of Pakistan and its justices”.

Furthermore, the ministry clarified, “No such observation was made by the Supreme Court which equated the military courts’ trials to a dictatorship.”The news was published by sections of the press about the proceedings of the Supreme Court regarding hearing of petitions by a 17-member bench challenging passage of 21st Constitutional Amendment.

It is pertinent to mention here that a 17-member full bench of the Supreme Court headed by Chief Justice Nasirul Mulk also took notice of the news and issued notices to the relevant sections of the press. The bench also directed the Attorney General for Pakistan to assist the court on this issue on Thursday.

Our correspondent adds: The report with the above mentioned SC remarks was issued by the Online news agency and carried by several newspapers. Online news agency’s reports, particularly on Supreme Court, were also contradicted in the past. The Editorial Committee of the Jang Group has taken notice of this fact and decided to use Online news agency’s reports after tight scrutiny in future. The News regrets publication of Online news agency’s report and apologises for this.
This blog has observed from time to time how hazardous it is to predict outcomes on the basis of comments and colloquys during appellate arguments. Equally, a comment or question from the bench is not a holding of the court. Still, this current kerfuffle seems like serious overkill, and calculated to chill robust coverage of the court's public proceedings. Bad journalism should mean readers turn to other news outlets, not haling careless journalists or their management into court. Editor's gratuitous advice: let it go.

Hey, ROK, it's 2015!

Can it be that South Korea is still having trouble coming to grips with conscientious objection by Jehovah's Witnesses? Seems so, according to this piece in the Los Angeles Times:
Some 600 conscientious objectors are currently behind bars in South Korea, most of them Jehovah’s Witnesses, for refusing to serve in the 650,000-strong military. Though South Korea has several “alternative service” options for men like Lee, including working in administrative roles in government offices, even these recruits must go through a month of combat training — a requirement that some find unacceptable.

Russia 0, Georgia 1?

In a remarkable development, the Russian Federation has agreed to allow Georgia to prosecute a Russian soldier accused of murdering seven Georgian civilians. It's an amazing turnaround, attributed to protests by Georgians. Details here. Excerpt:
Russia has agreed to let Armenian courts try a Russian soldier accused of murdering seven members of an Armenian family after deserting Russia's major military base in the country. The move is a major concession by Moscow, and comes as large-scale street protests in Yerevan against Armenia's Russian-owned electricity company have been gathering strength.

The soldier, Valery Permyakov, walked off Russia's 102nd military base in Gyumri on January 12, walked into the nearby home of the Avetsiyan family and opened fire; six died immediately and a seventh, a six-month-old baby, died later in the hospital. The case outraged Armenians and led to unprecedented protestsagainst the base.

From the beginning, Armenia and Russia have disagreed about who should be able to try Permyakov: Armenia wanted him tried in Armenian courts, while Russia wanted him to be tried by a Russian military court, albeit on Armenian soil.

On June 26, Armenian President Serzh Sargsyan met with a Russian government delegation to discuss energy fees, the issue that sparked the Yerevan protests. But the scope of the discussions was apparently wider than that, and Sargsyan's office issued a surprise announcement after the meeting:

"At the meeting ... Sargsyan took the opportunity to express appreciation to the Russian law enforcement organs, in particular to the prosecutor's office for effective cooperation with the Armenian prosecutor's office on the investigation the inhuman crime in Gyumri in January," Sargsyan's office said in a statement, news agencies reported. "The decision about the transfer of the criminal case to the Investigative Committee of Armenia and the appropriate authorities in Armenia, reflects the spirit of partnership and brotherhood and fully corresponds with the position of the Armenian-Russian agreement on the status of the Russian military base in Armenia."

Damages for wrongful military conviction in Taiwan

Here's a bad one -- with the wronged party at least gaining some small compensation after many years and many indignities. Taipei Times has the story here:
The Supreme Court yesterday awarded Hsu Jung-chou (許榮洲), acquitted of the rape and murder of a five-year-old girl at Air Force Command Headquarters in 1996, state compensation totaling NT$1.59 million (US$50,997) for time he spent in detention during judicial proceedings. 
The court awarded Hsu compensation of NT$2,000 per day for a total of 796 days he spent in detention. Hsu was initially found guilty, but subsequent appeals to higher courts saw the verdict eventually overturned due to insufficient evidence. 
Yesterday’s state compensation ruling by the Supreme Court is final and cannot be appealed. 
The trial over the rape and murder of the girl, surnamed Hsieh (謝), drew substantial public attention to the miscarriage of justice by military investigators and court judges after the wrongful conviction and execution of 21-year-old airman Chiang Kuo-ching (江國慶) in 1997. 
It was only later that the public learned that an innocent man was put to death, as Chiang had been tortured and forced to sign a confession under duress, while investigators failed to carry out forensic examinations and no scientific verification of evidence presented by military prosecutors was carried out. 
In a September 2011 retrial, a military court exonerated Chiang and awarded his family NT$103.18 million (US$3.4 million at the time) in compensation. 
New evidence and witness testimony that emerged in 2000 pointed to Hsu as the prime suspect in the case. 
At that time, Hsu was serving a jail sentence in a military prison for the rape and murder of young girls in Taichung in 1997, cases which reportedly had many similarities to the 1996 case at Air Force Command Headquarters, where Hsu served concurrently with Chiang. 
In December 2011, the Taipei District Court found Hsu guilty of the rape and murder of Hsieh, sentencing him to an 18-year prison term. The judgement cited bloody palm prints found at the scene of the crime and in a basement washroom, and confessions that Hsu made several times throughout the investigation. 
In a subsequent appeal, the Taiwan High Court in April 2013 overturned Hsu’s conviction, citing insufficient evidence and inconsistencies between his confession and aspects of the case. It was further noted by the court that Hsu, who allegedly has a low mental capacity and cannot express himself well, could not have produced the confession that was written down by a military investigator. 
The ruling also said that, while the bloody palm prints put Hsu at the scene of the crime, it was not sufficient evidence to prove that he had actually committed the crime. 
In March last year, the Supreme Court also cited insufficient evidence in upholding the High Court’s ruling, a final decision that cannot be appealed. 
The case remains unsolved.
Taiwan abruptly abolished its military courts last year after a conscript died from exhaustion while in disciplinary custody. 

Serendipity--that other day

The Washington Post reminds us of  a 150th anniversary tomorrow--June 30, 1865.

[F]ollowing a seven-week military trial at a hastily constructed courtroom on the third floor of what is now Grant Hall at Ft. McNair, Washington, D.C., the verdict was announced for the eight accused of conspiring to assassinate President Abraham Lincoln. That verdict, which was reached in a private meeting June 29, would send four of the defendants to the gallows, three to prison for life and an eighth to six years in prison.

See here for a trip report earlier this year to the site of the trial, hangings, and temporary burial sites, and see here for some more photography of the "court" room.

That day in history

The History Channel reminds us that:
On [30 June] in 1775, the Continental Congress drafts its rationale for taking up arms against Great Britain in the Articles of War.
In the Articles of War, written one year before the adoption of the Declaration of Independence, Congress referred to “his Majesty’s most faithful subjects in these Colonies” and laid the blame for colonial discontent not on King George III, but on “attempts of the British Ministry, to carry into execution, by force of arms, several unconstitutional and oppressive acts of the British parliaments for laying taxes in America.”

By phrasing their discontent this way, Congress attempted to notify the king that American colonists were unhappy with parliamentary policy. By July 1776, the Declaration of Independence proclaimed something very different[.]

Sunday, June 28, 2015

Tribunals v. courts in India

Maj (ret) Navdeep Singh
Global Military Justice Reform contributor Maj. Navdeep Singh has written this op-ed about the use and misuse of tribunals in India. It's pertinent to military justice because of concern that the Armed Forces Tribunal is, like some others, located within the ministry whose decisions it is supposed to review? Which court should have appellate review jurisdiction over such a tribunal? Is your answer different if the Supreme Court can review only cases that present issues of widespread importance?

The graphic at right illustrates Maj. Singh's essay.

The conundrum of the 18th and 21st Amendment cases

Saad Rasool has written this insightful column for The Nation on the pending Supreme Court of Pakistan cases testing the validity of the 18th and 21st Amendments to the Constitution. He observes that the
[s]um total of these amendments mean that military trials of (select) religious terrorists can now take place under the Army Act, outside the gates of fundamental rights, by serving Army officers, who cannot be challenged on the basis of the constitutional principle of due process or ‘separation of powers’. As a result, the constitutional and legal paradigm of Pakistan has created three different forums for adjudication of somewhat similar (identical?) offences: 1) Sessions Courts, for the trial of (regular) murder and connected offences; 2) the Anti-Terrorist Courts, for trial for all terrorism offences, unconnected with religion; and 3) Military Courts, for trying terrorist suspects who use “the name of religion or a sect”.

Surprisingly, the (absolute) discretion, as to which cases will be referred to the military courts, has been left in the (partisan) hands of Federal Government. Also, for now, there is no clarity or transparent procedure for how such determinations might be made. In fact, the entire exercise of such unfettered discretion of the Federal Government, to arbitrarily pick between different forums of adjudication, offends the cardinal principles of equality before law, and thus flies in the face of established principles of our jurisprudence, including the landmark case of Waris Meah (PLD 1957 SC 157).
*  *  *
[T]he existence of military courts, and their constitutional protection, necessarily undermines the legitimacy of our judicial process. It does far greater damage to the independence of judiciary than Article 175A ever could! How then can such an aberration be tolerated by a judiciary that claims to have “buried forever” the doctrine of necessity? Is it is not “necessity”, above all other arguments, that rests at the core of enacting military courts? And if we allow “necessity” to be a legitimate constitutional excuse today, can we really expect to not use it as a defense again, tomorrow, when some military adventurer decides to depose democracy?

On the other hand, is there any justification for the Court, which is a creature of the Constitution, to invalidate provisions of the very document that creates it? In other words, can the makhlooq invalidate part of the khaliq? And on what basis? How can we decipher, and then apply, an unwritten ‘Basic Structure’? Can the ‘Objectives Resolution’ be used as a touchstone for this exercise? If so, will we not then forever enshrined Islamic ideology (as interpreted by Mullahs) to be an unimpeachable part of our Constitution? What consequences would this have on Fundamental Rights? On minority rights? On laws of criminal procedure and evidence? On our daily lives, and that of our children, and their children after that? 
These are tough questions for honourable Judges. And the answer entails a constitutional soul-searching exercise to determine not only who are as a people, but also who we wish to become as a nation.

Friday, June 26, 2015

Chaplains and same-sex marriage

Today's 5-4 decision by the Supreme Court of the United States in Obergefell v. Hodges, the same-sex marriage case, will be discussed far and wide in the coming weeks and months. Presumably there will now be times when military chaplains decline to officiate at such nuptials on the grounds that it is contrary to the doctrine of their endorsing faith group (indeed, perhaps these issues have already come up). Federal law provides:

Protection of Rights of Conscience of Armed Forces Members and Chaplains.
[Most recent version is § 533 of the National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, as amended by § 532 of the National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66]:

(a) Protection of rights of conscience.— 
(1) Accommodation. Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expression of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

(2) Disciplinary or administrative action.--Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline.

(b) Protection of chaplain decisions relating to conscience, moral principles, or religious beliefs.--No member of the Armed Forces may—

(1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain; or 
(2) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a requirement prohibited by paragraph (1).
NBC News is running this story. Excerpts:
Any military chaplain or clergy can refuse to perform a same sex marriage "if it is not in line with the tenets of their faith." But same-sex couples are free to pick their own clergy member to perform their ceremony.

Same-sex marriage ceremonies have been taking place in military chapels since September 2013, when the Pentagon ruled that same sex partners of a service member were entitled to the same benefits provided to opposite sex couples, such as health care, access to military facilities and services on all military bases.

Hearings conclude on 18th and 21st Amendment cases

Phew. The Express Tribune reports here that the Supreme Court of Pakistan today concluded its marathon hearings on the numerous pending challenges to the 18th and 21st Amendments to the Constitution. The case is now submitted. No word on when a decision may come down.

Dawn provided this useful account of the history of military courts in Pakistan:
The first time military courts were introduced in Pakistan was in 1953 during the anti-Ahmedi riots in Lahore, whereas the second such occasion came in Oct 1958 when the first martial law was declared on the night between Oct 7 and Oct 8 and remained in existence for four years. 
The third time such courts were introduced was on March 25, 1969, when Gen Yahya Khan declared martial law that remained in force until Dec 20, 1971. 
Military courts remained operative until April 21, 1972, under a civilian martial law administrator and a large number of trials were held during the period. 
In April 1977, military courts were established for a fourth time when a mini-martial law was clamped on Lahore, Karachi and Islamabad. However, the Lahore High Court struck it down while deciding the case of Darvesh Mohammad Arabi
But the longest and the most repressive period in our history was when Ziaul Haq clamped martial law for eight long years and military courts tried a large number of political workers, mediapersons and journalists who suffered long jail terms. 
The next effort was made in 1998, when the Pakistan Armed Forces Acting in Aid of Civil Power Ordinance 1998 was introduced on Nov 20. The ordinance was applied in certain parts of Sindh where the armed forces were called under Article 245 of the Constitution. But the ordinance had provided a special section dealing with appeals against the trials conducted by the military court – a provision missing in the 21st amendment. 
In 1999, a nine-judge bench of the Supreme Court struck down military courts in the Sheikh Liaquat Hussain case. This judgment is the most relevant in relation to the 21st amendment since the notion that the judicial system has failed to deliver was adequately addressed in the Sheikh Liaquat Hussain case, the counsel had argued.

New Human Rights Watch Report on extra-judicial killings and military justice in Colombia

Human Rights Watch has just released a report titled On Their Watch: Evidence of Senior Officers' Responsibility for False Positive Killings in Colombia. Pages 77-84 deal specifically with the military justice system, and make for disturbing reading. Excerpt:
There are several reasons why military jurisdiction in such cases poses a major obstacle to justice. These include the military justice system’s record of impunity in human rights cases, its failure to take basic steps to investigate false positives when most cases were under its jurisdiction, and recordings of [Lt. Col. (ret)] González del Río’s phone conversations with a military judge and a man who appears to be a colonel linked to a high-level office in the military justice system, both of whom offer to help González del Río, further highlighting the system’s lack of independence and credibility.

The following sub-sections discuss these problems. All of them also made it particularly alarming that between 2011 and 2015, the Colombian government sought to approve legislation to expand military jurisdiction, which would have led false positive cases to be transferred from civilian prosecutors back to military courts. To its credit, in April 2015, the government removed the most problematic language from its most recent proposed constitutional amendment that had threatened to broaden military jurisdiction and cause such a transfer. [Footnotes omitted.]
The HRW report includes excerpts from transcripts of authorized wiretaps.

Panel discusses the Pakistani military's role in fighting crime and dispensing justice

"Should the military fight crime and dispense justice" was the question addressed from several perspectives in this recent, worthwhile Herald panel discussion in Pakistan. Here are some excerpts:
Our courts have almost always considered themselves to be subservient to the military. Judicial decisions against military rule surface only after a dictator has left. All the decisions against Pervez Musharraf’s rule are coming out after he is no longer in power. The decision in the Asma Jillani case against Yahya Khan’s military government, too, came after Yahya’s rule had already ended. 
Individual judges, however, have tried to introduce measures against the encroachment of civilian turf by the military. For example, in the Nusrat Bhutto case, Zia’s takeover was condoned, but after that the high courts said the military regime could not try civilians in military courts. Chief Justice Iftikhar Muhammad Chaudhry’s decision on a petition by the Sindh High Court Bar Association against the imposition of emergency rule by Pervez Musharraf in 2007 became possible only because there was public resentment over prolonged military rule. But when the superior judiciary sees the army, civilian institutions and a majority of the media on the same page, then at the end of the day, they are just 17 old men. 
* * * 
Now if we are talking of the constitutionality of the military courts, we must keep in mind that there have always been military courts within the military. If they can try military men, then why can’t they try civilians? Also, military courts are not going to stay forever. They are being set up for only two years. Their second important feature is that every case is first vetted by the provincial government and then by the federal government before it is finally sent to a military court. So, there is a filtering process [in place]. 
* * * 
As an office-bearer of the Karachi Bar Association, I keep meeting judges who deal with sensitive cases and are getting threats. An army man, surrounded by an army unit, holding trial in some military area and living in a garrison will definitely have all the wherewithal to issue quick verdicts and award strong punishments which another judge travelling long distances from his home to the courtroom in a small unguarded car does not have.

Thursday, June 25, 2015

James Weirick commentary on a recent CAAF decision and the Gillibrand bill

James W. Weirick
James W. Weirick, a retired Marine Corps judge advocate, has written a powerful piece about the recent Woods decision of the U.S. Court of Appeals for the Armed Forces and the failure, for a second time, for Sen. Kerstin Gillibrand's Military Justice Improvement Act (MJIA) to garner the 60 votes to move forward in the Senate.
MJIA would take these important decisions out of the hands of untrained commanders and place the decision to prosecute serious crimes, and other details such as selecting jurors, in the hands of independent, trained, professional military prosecutors. 
MJIA will only professionalize military justice and avoid the type of elementary mistakes that occurred in the Woods case, which resulted in the highest military court overturning a conviction in an aggravated sexual assault. Members of the military deserve an impartial and professional system of justice.

Progress report

It's time for another progress report. In an hour or two, Global Military Justice Reform will score its 150,000th hit. These have come from readers in an amazing 149 countries (welcome aboard, Gabon), with 1727 posts and 247 comments. Not bad, considering that the blog has only been around since the middle of January 2014. As always, many thanks to contributors and commenters for helping keep this a lively and, we hope, valuable source of news and commentary.

In case you were wondering, here is a snapshot of the 10 countries that had the highest number of hits in the past month:

United States
United Kingdom

Postscript: It's official: we passed the 150,000-hit marker at about 4:55 p.m., an hour after this post went up.

Slowest court-martial in history?

The slowest court-martial in history* has resumed in Freetown, Sierra Leone. Here is an account of the direct and cross-examination of a police forensic documents examiner, testifying for the defense.

A government effort to impugn the witness's impartiality seems to have backfired:
He was asked as to what was the consideration for the work he did for the accused, in other words, how much was he paid, but the witness replied that he was not paid but the government was paid through the Bank of Sierra Leone. 
He noted that he acted on the instructions of his bosses and that he was not in constant touch with the accused when he was conducting the forensic analysis.
* The Editor made this up. Any reader who can point to a slower-moving military court proceeding (other than the Guantánamo military commissions, which remain in a class of their own) is welcome to nominate it by a comment on this post. Real names only, please.

Video in the Supreme Court of Pakistan

For an American observer, it is frankly difficult to get the full drift of the day-after-day arguments in the Supreme Court of Pakistan's consideration of the constitutional petitions challenging the 21st Amendment. The other day we read that the Attorney General had promised he would explain the operations of the new military courts by showing the judges video clips. Here is part of a news account of yesterday's proceedings:
The federal government has shown different video clips to the Supreme Court judges, wherein Taliban leaders claim that they don’t recognise the state of Pakistan or its Constitution. 
Similarly, parents of the deceased Army Public School children were also present in the courtroom on Wednesday to express their solidarity with the federal government regarding its stance about the 21st Constitutional Amendment. 
After watching the clips, the Attorney General for Pakistan (AGP) Salman Aslam Butt contended before the 17-judge full court that the Taliban have declared war against Pakistan therefore the constitutional amendment was introduced and modification made in the Army Act 1952. Justice Jawwad S Khawaja asked: “Why the state is not registering FIRs against them [Taliban].” In the same breath he inquired from where these people have emerged.

He said earlier there was no distinction of Shia and Sunni, but now it is everywhere. “Who is responsible for the creation of these people [Taliban]?”

The AG said he would answer all these questions, but that he would do so in-camera.

Justice Qazi Faez Isa asked the attorney general if Da’esh [ISIS] has been declared a proscribed organisation and banned, and if the answer is in the affirmative, then show the court its notification. The AGP assured the court that he would produce the notification.
The snippets here and in the rest of the news article may not do justice to what actually transpired in court, but if they bear any resemblance to the actual flow, they suggest a process much more free-form than what American practitioners are used to. The video that had been promised was to have explained the actual workings of the military courts, but this account gives no sense that that is what the video actually did. Rather, it sounds like the video was simply propaganda about the threat posed to the state by the Taliban.

The notion of asking an appellate court on the spur of the moment to go into in camera session is also unfamiliar territory.

All of this may be the result of an appellate process that is radically different from the strictly time-constrained work of the Supreme Court of the United States, where multi-day arguments are (other than the extraordinary three-day argument in the first health care case in 2012) a relic of a long by-gone era. (The Editor recalls reading a 1974 admiralty case from the House of Lords--The Johanna Oldendorff [1974] AC 479--where the then highest court of the UK heard argument over several days. Perhaps this was not uncommon then, or even now.)

Wednesday, June 24, 2015

Turkish Constitutional Court pushes back

The Turkish Constitutional Court has invalidated a measure that would give the president control over cases involving senior military officers, according to this report.
The annulment -- published in the Official Gazette -- means that high-ranking personnel who have been charged with negligence of duty and dismissed can appeal their cases to the Constitutional Court without fear of intervention from the Presidency. 
The Constitutional Court looked into the issue of the Presidency's power to rule over appeal cases when the Republican People's Party (CHP) took the proposed legal amendments to the top court, requesting the annulment of some of the amendments. The bill was part of an omnibus package aimed to give the Presidency further powers such as overseeing potential appeals by high-ranking military officers. 
According to the bill, which was named “Law changing various articles of the Military Law, other laws and statutory decrees,” the chief of General Staff and the heads of the various branches of the armed forces be only be investigated or tried with the permission of the prime minister, while the head of the Gendarmerie General Command (JGK) can be only be investigated or tried with the permission of the interior minister.

Legislative carts and horses in Islamabad: is timing everything?

Two interesting points came up in the course of the latest hearing in the Supreme Court of Pakistan's consideration of the validity of the 21st Amendment, which authorizes military courts to try certain offenses by civilians. First, did the Senate pass the Pakistan Army (Amendment) Act 2015 before it passed the Constitution (Twenty-first Amendment) Act 2015? If so, the cart may have gotten in front of the horse. Second, did the President sign the measure prematurely? The Attorney General said he would clarify matters.

The answers to these questions could afford the Court a convenient way to avoid deciding the deeper and thornier question of whether a constitutional amendment can itself be unconstitutional.

Further details of the hearing can be found here.

UN report on weaknesses in peacekeeper discipline arrangements

The UN's Office of Internal Oversight Services (OIOS) has issued a program evaluation report that identifies a variety of weaknesses in the system for dealing with sexual exploitation and abuse (SEA) in peacekeeping operations. A link to the report can be found here. For military personnel provided by troop-contributing countries (TCCs), the report notes these challenges:
· Unauthorised investigative activity by missions prior to United Nations Secretariat notifying the TCC 
· Time consumed by following prescribed referral procedure 
· Delays in starting TCC investigations 
· Successive investigations by different investigative bodies 
· Differing investigative standards used by TCCs 
· Risk of loss of evidence/witness tampering caused by delay in starting investigation 
· Departure of personnel from mission against whom allegations have been made 
· Unclear reporting of outcomes related to sanctions imposed by TCCs

Tuesday, June 23, 2015

Government to offer a video in Pakistani Supreme Court

The government has promised it will tell all the Supreme Court of Pakistan needs to know about the military courts by showing the justices a video tomorrow. Details here.
"The AG said all the things had become clear in Liaquat Hussain case. 'I will come to the fact on Wednesday and will provide the details about trial in military courts. These all will be in the form of a video,' he said."
If any reader in Pakistan can send a link to the video, please post it as a comment. [Real name only, please.] 

Military commission defendants are better off than court-martial accuseds

[T]here are key differences between CMCR [Court of Military Commission Review] judges and their CCA [Court of Criminal Appeals] counterparts. While the Judge Advocates General can remove CCA judges without cause, the Defense Secretary can remove military judges from the CMCR for “good cause” or “military necessity” only. 10 U.S.C. § 949b(b)(4). Because removal is “a powerful tool for control,” Edmond, 520 U.S. at 664, the added insulation of CMCR judges is constitutionally significant. Additionally, the Supreme Court made a point in Edmond to emphasize that the CAAF [Court of Appeals for the Armed Forces] is “another Executive Branch entity.” Id. at 664 & n.2 (emphasis added). The CMCR’s decisions, by contrast, “are appealable only to [a] court[] of the Third Branch,” id. at 666—namely, this Court. 10 U.S.C. § 950g(a). 

In re Al-Nashiri , No. 14-203 (D.C. Cir. June 23, 2015), at 21 (emphasis added),
ably discussed here by Prof. Steve Vladeck

Attorney General's argument in 21st Amendment case

Dawn has this report on the government's argument in the 21st Amendment case in the Supreme Court of Pakistan. If accepted, it's bad news not only for civilians tried in the new military courts, but for military personnel tried by courts-martial as well. Excerpt:
The attorney general cited a number of cases and presented a huge volume of case laws to emphasise that the constitutional provision (Article 245) also took away the jurisdiction of high courts under Article 199 in relation to any area in which the armed forces for the time being were operating in aid of the civil power.

Referring to Article 199(3) of the Constitution, he said the high courts could not look into the trials being conducted by the military courts, adding that the courts could also not issue any order in relation to the people who had been made subject to the Pakistan Army Act (PAA) 1952 or had connections with the armed forces.

Citing an example, the federal law officer explained that an enemy alien, if apprehended, would never be tried under ordinary civil courts; he would be produced before the Field General Court Martial. Such people could not approach high courts, he argued.
Full disclosure: The editor has assisted counsel for one of the petitioners in the 21st Amendment litigation. 

UN Secretary-General appoints CAR investigative panel

Hon. Marie Deschamps
Justice (ret), SCC
The UN Secretary-General has announced the formation of the board that will look into non-UN-auspices peacekeeper misconduct in the Central African Republic. Here is the UN's news release:
Secretary-General Ban Ki-moon has appointed a panel to investigate the response of the United Nations to allegations of sexual abuse surrounding a deployment of foreign military forces in the Central African Republic (CAR), a spokesperson for the Organization has announced.

In a statement issued earlier this afternoon, the UN spokesperson confirmed that the Secretary-General remains “deeply concerned” by the allegations of sexual exploitation and abuse of children committed by foreign military forces not under UN command, as well as the Organization’s own response to the allegations.

The three-member panel – which will include Marie Deschamps of Canada; Hassan Bubacar Jallow of Gambia; and Yasmin Louise Sooka of South Africa – will aim to review both the allegations and the UN response and any shortcomings in existing procedures covering serious crimes by the Organization and related personnel, host State forces and non-State actors that it may become aware of during its review.
The panel will also conduct its work independently and will receive unrestricted access to all UN records and full access to staff members and other UN personnel, the statement added.

“The UN will make its best efforts to facilitate the access of the panel to non-UN personnel,” the spokesperson’s statement continued. “In addition to those that the panel may reach out to, any person who wishes to provide information relevant to the External Independent Review is encouraged to contact the panel directly through an external email address that will be announced shortly.” 
The three panel members will begin their work in July and aim to submit a report within ten weeks and will operate with the mandate to make recommendations on how the UN should respond to similar allegations in the future.