As the amendment to the Code of Court Martial Procedure (軍事審判法) is being implemented and the handling of military offenses is being transferred to the civil judicial system, US military courts are trying or have tried two major cases.
The first case was the trial of US Army Private First Class Bradley Manning, who gave the largest set of documents ever to be released to WikiLeaks.
The second case is the trial of Brigadier General Jeffrey Sinclair, who faces charges that include forcible sodomy, indecent acts, violating orders and adultery, which is a crime under US military law.
Neither the private nor the brigadier general has questioned the independence, fairness and transparency of the US military judicial system. They seem to feel that the system does not violate their human rights, and they have not asked to be tried under the civil judicial system.
The US military judicial system is independent, fair and transparent, and it protects every defendant’s rights. This means that both the civil and military judicial systems are respected. Nobody questions the coexistence of the two systems.
As for Taiwan, the transfer of military judicial cases to the civil judicial system is in line with public expectations. Since high-ranking officers can interfere with the military judicial system, there is a risk that they might protect one another. In addition, the quality of military prosecutors is lower than that of civilian prosecutors, and this might also affect the quality of an investigation or a trial. The transfer of the military cases to the civil judicial system in peacetime must therefore be seen as a step forward.
Still, it was a rash decision, a political expedient that failed to address the core of the problem: the independence and fairness of the military and civil judicial systems, as well as of prosecutors and investigators.
Although traditional “rule of man” and the Leninist party-state system tried to emulate advanced countries, these systems were still haunted by political intervention. Back in 1979, the Chinese Nationalist Party’s (KMT) extreme right and intelligence agencies stirred things up and caused the Kaohsiung Incident, setting up dangwai (黨外) — “outside the party” — democracy activists for treason charges and then trying them in the military judicial system. Cases like the wrongful execution of air force serviceman Chiang Kuo-ching (江國慶) made the military judicial system notorious.
President Ma Ying-jeou (馬英九) seems to have revived the “party-state” system. To eliminate pro-localization political leaders, his government has brought charges against officials in the previous, Democratic Progressive Party administration under the guise of cracking down on corruption. It has also intervened in trials, with complete disregard of due legal process. The civil judicial system lacks independence and fairness in the same way that the military system does.
The death of army corporal Hung Chung-chiu (洪仲丘) further highlighted the abuse of power and the discretionary rule mentality that exists in the military, but similar problems also exist in the civil judicial system. By transferring all the military cases to the civil court system, we are simply transferring all the problems of a “branch store” to the “head office,” while the fundamental problem of a lack of judicial independence, beyond the reach of Ma and the KMT, remains unresolved.