Sunday, August 30, 2015

Low batting average for Sindh military trial recommendations

According to this Express Tribune article, the Sindh provincial government has recommended 74 cases for trial before Pakistan's new military courts, but only three have been approved by the Interior Ministry. What could be the possible explanation(s)?

  • the need for the military courts was not as great as claimed
  • the provincial authorities are recommending cases that either do not merit military court trial or that lack the requisite evidence
  • the Interior Ministry is moving too slowly
  • the Interior Ministry is applying too high an evidentiary standard in evaluating provincial recommendations (either in general or simply those from Sindh)
  • there has been a sudden dramatic improvement in the effectiveness of Sindh's civilian criminal and anti-terrorism courts
The article reports:
Replying to a question of the chief minister, [Home Secretary Mukhtiar] Soomro said, “Presently, we have scrutinised 10 cases in our legal committee, which has cleared eight cases including the attack on Justice Maqbool Baqar, Nishter Park blast, attack on four policemen, attack on Gulistan-e-Jauhar police station, sectarian murder in New Karachi and five other connected cases.”

[Chief Minister Qasim Ali] Shah directed the home secretary to scrutinise more cases because Chief of Army Staff General Raheel Sharif has already ordered the establishment of more military courts in Karachi.
This suggests another bullet point explanation for the paucity of cases referred for military court trial:
  •  insufficient number of military courts
Why is this reminiscent of moviedom's "build it and they will come"? Court of Dreams?

Saturday, August 29, 2015

Stories we're following

Brig. Gen. S.T. Ansell
Every once in a while it's useful to take stock and consider the changing list of stories that seem to be the most urgent. In no particular order, here are some of the salient issues currently on Global Military Justice Reform's radar:

  • Pakistan's military courts (to sunset in January 2017 unless the Constitution is amended again)
  • UN peacekeeper discipline in the Central African Republic and elsewhere
  • Sexual assault in the U.S. armed forces
  • Command-centric disposition power in the U.S.
  • Pending Canadian Supreme Court cases
  • Military court reform in Lebanon
  • Military Justice Review Group report (to be made public by the Pentagon -- but when?)
  • Chinese military justice reform
  • Colombian reform legislation under review by the Constitutional Court
  • Nigerian military justice in free-fall?
  • Agenda-setting by the UN's new special rapporteur on the independence of judges and lawyers (will military justice reform and the Decaux Principles be given priority?)
What have we overlooked? Please comment (real names only, please.)

ROK courts grapple with conscientious objection

The courts in South Korea seem to be in disarray about conscientious objection. The Supreme Court just upheld a Jehovah's Witness's jail sentence, but lower courts have repeatedly found conscientious objection to be a constitutional right. The Constitutional Court held in 2011 that there is no right to CO treatment, but now has the issue under review again, as this article notes. Watch this space.

Important military justice decision from the Armed Forces Tribunal

The Kolkata Bench of India's Armed Forces Tribunal has handed down a major military justice decision, concluding with some harsh words. Harneet Singh v. Union of India, OA No. 30/2013 (AFT Kolk. Aug. 21, 2015), arose in the Indian Navy. The accused, a commander, was charged with several offenses arising out of damage to twin-screw INS Agray's propellers. Commander Singh was the ship's commanding officer. A host of issues were presented on appeal, including the president's failure to recuse himself, the failure to afford Commander Singh the right to participate fully in the Board of Inquiry that preceded the court-martial, late changes in the charges, multipliciousness, imprecision in the charges, and a failure to explain a variety of trial rulings. One interesting issue concerned the fact that the convening authority detailed all of the members, even though the governing regulations seem to call for the president of the court-martial to select the other members of the court. Another issue arose because the accused's promotion to commander had been illegally vacated, and the requirements for trial of a commander are more stringent than those for trial of a lieutenant commander. The two-member bench's 90-page decision concludes:
101. Keeping in view the discussion made hereinabove to sum up –

(1) The applicant was not permitted to participate in BOI proceeding in utter disregard of principle of natural justice and regulation.

(2) No time was granted to him to the extent of 96 hours in pursuance of Regulation 167. The Regulation is mandatory and its violation amounts to violation of principle of natural justice and affect the right of the accuse to avail reasonable opportunity.

(3) The allegation that the Prosecutor and the President belong to the same establishment/unit which may result likelihood of bias has not been considered in the light of Prithi Pal Singh (supra) and Ranjeet Kumar (supra). Hon'ble Supreme Court held that minimum requirement of natural justice is that Court Martial proceedings must contain impartial persons acting fairly without bias. Likelihood of bias may be tested with reasonableness of the apprehension in that regard in the mind of party.

Friday, August 28, 2015

Bar challenge to 21st Amendment decision

The Lahore High Court Bar Association has filed a review petition challenging the Supreme Court's recent decision upholding the 21st Amendment that authorized military courts to try civilians in Pakistan. A few details appear here, but this seems a futile effort.

Postscript: This article from Dawn provides additional details. The pleading filed for the Lahore H.C. Bar seems to be in the nature of a petition for rehearing.